| Ark. | Dec 17, 1906
(after stating the facts.)
First. Appellant did not except to the giving’ of instruction number three which'it makes the fifth ground of'its assignment of error in the motion for new trial. Appellant therefore can not complain of the giving of this instruction.
But, passing that, instructions numbered three and four declared the law more in appellant’s favor tifian it had the right to ask under the testimony adduced.
• The proof showed that the work contracted for by appellant with its principal contractor, and which was by him sublet to another,' would necessarily result in injury -to appellee. Where such is the case, the company contracting for the work to be done is liable, although the work is to be done by an independent contractor. This court, while announcing -the doctrine that a railway company is not responsible for the negligent or wrongful acts of an independent contractor in the construction of its work, has not failed to note also the qualifications to the rule. See St. Louis, I. M & S. Ry. Co. v. Gillihan, 77, Ark. 553, and cases cited.
In Martin v. Railway, 55 Ark. 510" date_filed="1892-02-27" court="Ark." case_name="Martin v. Railway Co.">55 Ark. 510, this court, after announcing the rule, declared also the limitations as follows: “But this rule-of immunity from liability is not withoüt its qualifications. If the thing to be done is in itself unlawful, a nuisance per se', o'r probably can not be done withoút necessarily doing damage, the person causing it tó be' done by another is as much liable for injuries suffered by third persons from the act done as he would be had he done the act in person.” The qualifications are in fact but a part of the rule. See Railway v. Yonley, 53 Ark. 503" date_filed="1890-03-08" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Yonley">53 Ark. 503, where .this court announces the rule in a quotation from Judge Cooley in his work on Torts, at page 646; also 3 Elliott on Railroads, § § 1063, 1064; 1 Jaggard on Torts, 233 et seq.
The instructions given were really moré favorable to appellant than the facts warranted; for it was undisputed that the work could not be done in the ordinary way without injury to appellee, yet the court submitted to the jury the question of whether or not the work was necessarily injurious to appellee, .and as to whether or not the injury was caused by the negligence of the subcontractor or his employees. The appellant, of course, was not liable for any injury caused solely by the negligence of its independent subcontractor or his employees; or for any increased damages which their negligence might have occasioned. But it was liable for injuries which must have resulted from the prosecution of the work, although the negligence of the independent subcontractor may have increased the- injury and enhanced the damages. The instructions were given in the form most favorable to appellant, ignoring undisputed facts in the record in favor of appellee.
Second. The court did not err in refusing to permit appellant to amend its answer as set forth in the statement of facts. Such an amendment was a work of supererogation on the part of appellant, for it had already adduced before the jury without objection all the testimony bearing upon the issue sought to be raised by the amendment. The amendment was unnecessary, and the court did not abuse its discretion in refusing it, for in so doing no possible prejudice to appellant’s cause resulted.
Likewise, the court did not err in refusing appellant’s request for instruction number one. The making of a survey gave appellant no right in the land on which appellee’s telephone was located, even if the telephone was built after the survey. It was not shown when appellant acquired its right of way, and, unless this was acquired prior to the construction of appellee’s telephone, appellant had no exclusive rights in the ground. Moreover, the clearing of appellant’s right of way was done in 1901, prior to the filing of its map and profile in the office of the circuit clerk of Izard County. The appellant was therefore without authority to do the clearing under the statute, Kirby’s Digest, § 6569, and was liable in damages for the injury caused by its wrongful acts. See authorities supra.
Third. It is conceded by appellee here that the work of which complaint was made was that of an independent contractor. But appellee contends that the work was necessarily injurious to the property of appellee, and that appellant at the time its right of way was cleared was engaged in a wrongful act, and •was therefore liable to appellee for the injury done its property. 'As we have shown, that was the theory upon which the cause was submitted to the jury. There was no prejudicial error in instructions, and the verdict was sustained by the evidence. Affirmed.