111 Ind. 195 | Ind. | 1887
This action was brought by Farver against the railway company to recover damages for personal injuries alleged to have been sustained by him while lawfully pursu
Counsel are at variance, however, as to this matter, but the view we take of the case makes it quite immaterial whether it be one way or the other.
The evidence tends to show, without conflict or substantial dispute, that in September, 1882, the railway company was engaged in constructing a well or reservoir, from which to supply a water station on the line of its road, near Auburn, Indiana. Running water interfered with the work, and it became necessary to cause the accumulating water to be pumped out of the way, so as to prevent it from running into the well or reservoir which was in process of construction. The construction of the well and laying pipes thence to the water station had been committed to the charge of a Mr. .Kress, an employee of the railway, who, with a force of men under his control, was engaged in providing means to supply the station with water. Williams, who resided in or near .Auburn, was the owner of a small portable steam-engine, which he was accustomed to employ in sawing wood, threshing grain, pumping water, and the like, as opportunity offered. He contracted with Kress, for a stipulated per diem, to furnish and operate his engine in pumping, at such times as might be necessary, in order to keep the water from interfering with the work which the latter was constructing. Williams agreed to furnish his engine and personally superintend the running of it, and to provide and pay for such assistance as he needed in keeping the water from obstruct
In pursuance of this agreement the latter placed his engine in a vacant lot, some six feet or more outside the line of a public highway which intersected the railway company’s line at or near the point where the rfeservoir was being constructed. So far as appears, he selected the location of the engine, and controlled its operation, as the work he engaged to do required. When the accumulated water was pumped down to a certain level, or when persons were passing on the highway, the engine was stopped, and when the water rose to a certain height the pumping was resumed. While Williams was thus engaged in carrying out his agreement, the plaintiff’s horse, in passing along the adjacent highway, took fright at the engine, and became unmanageable. The plaintiff was thrown from his carriage and injured. The question is, whether, under the circumstances, the railway company is. liable for the negligence of Williams, assuming that he was, negligent in operating his engine so near the public highway.
The rule which controls in cases of this class has become-well established, and has more than once been recognized and applied by this court. Ryan v. Curran, 64 Ind. 345 (31 Am. R. 123); Sessengut v. Posey, 67 Ind. 408 (33 Am. R. 98); City of Logansport v. Dick, 70 Ind. 65 (36 Am. R. 166).
Under this rule, where work which does not necessarily create a nuisance, but is in itself harmless and lawful, when carefully conducted, is let by an employer, who merely prescribes the end, to another who undertakes to accomplish the end prescribed, by means which he is to employ at his discretion, the latter is, in respect to the means employed, the master. If, during the progress of the work, a third person sustains injury by the negligent use of the means employed and controlled by the contractor, the employer is not an
The work contracted to be done was not in itself unlawful, nor was it necessarily a nuisance to operate a portable steam-engine in a careful manner in close proximity to a public highway. Injury could only result from its negligent use. It would not do to say that the operation of a
Now as to the relation between the railway company and Williams, keeping in view the rule that where an employee is exercising an independent employment, and is not under the control and direction of the employer, the latter is not responsible for the negligence or misdoings of the former. King v. New York Central, etc., R. R. Co., 66 N. Y. 181 (23 Am. R. 37). It is nowhere denied but that Williams was employed to furnish and superintend the running of his engine, to the end that the water might be pumped out of the way, so as to admit of the prosecution of the work in which the railway company was engaged. In respect to the engine, and the manner of operating it, he was the sole master, and had the right to employ whomsoever he pleased to assist him. Neither the railway company nor any of its employees had the right to run the engine, or to interfere in the manner of its running, or to direct its owner how or when it should be run. The only right the company had in respect to the matter was to require Williams to accomplish the end of keeping the water out of the way of its workmen. In respect to his engine, and its control, and his liability for its negligent use, the lat
The conclusion thus reached upon the facts renders it unnecessary that we should examine in detail all the various-questions discussed in the briefs. The evidence does not sustain the finding. The court erred in overruling the motion for a new trial.
Judgment reversed, with costs.