124 Mich. 91 | Mich. | 1900
The plaintiff, a brakeman of many years’ experience, was injured by being struck and thrown from a freight car by a pile of lumber which stood near the siding, on premises occupied, if not owned, by the defendant, for the purpose. The defendant owned a manufacturing plant, and had been for many years, and was at the time, engaged in manufacturing doors, sash, blinds, and molding. It had entered into a contract with one Falardeau, by which he was to take the lumber from the cars, pile it, put it in the kiln and dry it, take it thence to the mill and manufacture it into doors, and load them upon cars, at an agreed price per door. To do this, he hired and paid the help, but used the premises of the defendant. The doors were manufactured upon the first floor of defendant’s factory, which appears to have been under Falardeau’s control. The other floors were operated by the defendant, whose foreman had charge of them. The -lumber used upon those floors was taken from the piles made by Falardeau’s men. The circuit judge directed a verdict for the defendant upon the ground that the lumber was piled by an independent contractor, for whose misconduct the defendant was not responsible. The plaintiff alleges that this is the only error relied upon. Counsel for the defendant contend that the ruling of the court was correct, upon the ground stated, and for the further reason that the proofs conclusively show that the
An examination of the record shows that the defendant had control of, and itself carried on business at, the premises in controversy. Its factory was in charge of its foreman. It employed men to do work. It employed Falardeau to make doors “by the piece” in its factory; furnishing him a portion of the factory, and machinery, for the use of himself and his men. It purchased and owned all lumber that was brought upon the premises, and it contracted with Falardeau to put certain work upon it, viz., unloading, piling, transporting to the kiln, and drying it. He used what he needed for making doors, and the rest was used by the defendant for other purposes. The uncontradicted testimony shows that the lumber passed into his possession and control when the car arrived, and it was under his control until it was wanted for use. There is nothing to indicate that the defendant exercised, or had under his contract, the right to dictate how near the track it should be piled. The piling of the lumber was not under its control or supervision, so far as appears from the record. This being so, the defendant was no more chargeable for the negligence of Falardeau’s men in piling the lumber than an owner of goods is for the negligence of a drayman in transporting them. It has been held in such cases that the relation of master and seryant, as ordinarily understood, does not apply. De Forrest v. Wright, 2 Mich. 371; Riedel v. Moran-Fitzsimons Co., 103 Mich. 262 (61 N. W. 509). Had one of Falardeau’s men injured a passer-by, through carelessness, while engaged in unloading or piling the lumber, or in transporting or loading doors upon the car, the defendant would not be liable. As a rule, the law requires the negligent person to recom
Counsel for the plaintiff cite a number of cases which are said to limit this rule, but we think they will be found to rest upon another principle, viz., that the defendants owed duties which they could not avoid by contracting that another should perform the act in which the negligence occurred. Many of these are cases where cities contracted for public improvements in the public highways, it being their duty to keep the streets in a reasonably safe condition. Thus, in City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78), it was held as to sewers:
“The city takes this power with the understanding that it shall be so executed as not unnecessarily to interfere with the rights of the public, and that all needful and proper measures shall be taken, in the' execution of it, to guard against accidents to persons lawfully using the highways at the time. The city is bound for the performance of these obligations, and cannot rid itself of their performance by executing the power through an agent. ”
Even this doctrine does not meet the approval of Mr Justice Campbell. 9 Mich. 188.
Again, in Darmstaetter v. Moynahan, 27 Mich. 188, it was held that one who was acting under authority from the municipal authorities to incumber a street for the purpose of filling his ice-house could not shield himself from liability for injuries caused by unlawfully obstructing the street with fragments of ice, under an objection that his employe was a contractor, and alone liable. The Corey Case was said to rule that case, and the liability was distinctly put upon the ground that, under the facts, the relation of principal and agent existed.
“Under these circumstances, all persons using the track for such purposes used it as the agents of defendant, and defendant was liable for their conduct. The relation of principal and agent or master and servant may exist between a corporation and an employer as well as between individuals; and the use of a special franchise, under the direction and for the purposes of its owner, can never be maintained, except as his act. This we have held repeatedly in regard to railroad tracks. It was so held in Gardner v. Smith, 7 Mich. 410 (74 Am. Dec. 722), and in Bay City, etc., R. Co. v. Austin, 21 Mich. 390; and the same principle was recognized in Continental Improvement Co. v. Ives, 30 Mich. 448, and Grand Rapids, etc., R. Co. v. Southwick, Id. 444.”
In Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118), the city was held liable for negligence of a paving company, upon the theoi-y that it could not avoid its responsibility to protect the public. Another case substantially on all fours with the Southwell Case is Monje v. City of Grand Rapids, 122 Mich. 645 (81 N. W. 574), where several authorities not cited will be found. These cases turn upon a radically different rule, and do not support the proposition that one having a service to be done cannot avoid liability for the acts of an independent contractor to whom he lets the work.
The same principle is involved in Hawver v. Whalen, 14 L. R. A. 828 (49 Ohio St. 69, 29 N. E. 1049). In the copious notes to this case will be found many cases to the same effect. See, also, Bailey v. Mayor, etc., of New York, 3 Hill, 543 (38 Am. Dec. 669), where it was said:
“If we are not mistaken in that conclusion, and they are to be regarded as a private company, like any other body of men upon whom special franchises have been con
Counsel make the further point that:
“ Where the superior is in possession of fixed property, as real estate, upon which some service is to be performed, he is liable for the negligence of independent contractors; for in such cases the use of the-property is confined by law to himself, and he should take care that that use and management works no injury to others, and, of consequence, that he brings no persons there who do any mischief to others.”
This language is taken from a dictum of Mr. Justice Martin in Moore v. Sanborne, 2 Mich. 529 (59 Am. Dec. 209). In this connection we refer to De Forrest v. Wright, 2 Mich. 371, where the proposition is repudiated in the following language:
“A distinction was adverted to at the bar, in the argument of this case, as existing between fixed real property
Some Massachusetts cases are cited in support of this doctrine. In Earle v. Hall, 2 Metc. (Mass.) 353, it was held:
“The general owner of real estate is not answerable for acts of carelessness, negligence, and mismanagement committed upon or near his premises, to the injury of others, if the conduct of the business which causes the injury is not on his account, nor at his expense, nor under his orders or efficient control. Where A. agreed to convey land to B., and B. agreed to build a house thereon and pay for the land, and, while the agreement was in force, B., in preparing to build the house on his own sole account, by workmen employed by himself alone, undermined the wall of the adjoining house of C., whereby it was injured, it was held that A. was not answerable for this injury, although the title to the said land remained in him at the time when the injury was committed.”
It is not, therefore, an authority supporting the rule contended for.
The case of Stone v. Codman, 15 Pick. 297, was where an adjoining proprietor brought an action for an injury resulting from the negligent making of a drain upon defendant’s land, thereby .letting water into his cellar. This case is not in point, and more closely resembles the first class cited. The landowner always owes a duty to so use his land as not to injure an adjoining proprietor, as by setting fires, draining land, etc., and he cannot avoid it by hiring another to set fires or lay drains. Robbins v. Chicago City, 4 Wall. 657.
Hilliard v. Richardson, 3 Gray, 349 (63 Am. Dec. 743), is another case cited. There a carpenter, who had contracted to build a house upon defendant’s land, ob
“We have thus, at the risk of tediousness, examined the case at bar as one of authority and precedent. The clear weight and preponderance of the authorities at common law is against the rule given to the jury. The rule of the civil law seems to have limited the liability to him who stood in the relation of 'paterfamilias to the person doing the injury. Inst. lib. 4, tit. 5, §§ 1, 2; 1 Dom. Civ. Law, pt. 1, lib. 2, tit. 8, § 1; Dig. lib. 9, tit. 2, § 1. Viewing this as a question, not of authority, but to be determined by the ápplication to these facts of settled principles of law, upon what principle can the defendant be held responsible for this injury ? He did not himself do the act which caused the injury to the plaintiff. It was not done by one acting by his command or request. It was not done by one whom he had the right to command, over whose conduct he had the efficient control, whose operations he might direct, whose negligence he might restrain. It was not an act done for the benefit of the defendant, and from the doing of which an implied obligation for compensation would arise. It was not an act done in the occupation of land by the defendant, or upon land to which, upon the facts, he had any title. To say that a man sháll be liable for injuries resulting from acts done near to his land is to establish a rule as uncertain and indefinite as it is manifestly unjust. It is to make him liable for that which he cannot forbid, prevent, or remove.
See, also, Moore v. Sanborne, 2 Mich. 519 (59 Am. Dec. 209).
The important consideration in such cases is whether the act is one directed by the superior. If it is done by one whose work is supervised or controlled by the superior, there may be a liability; but where the person whose negligence has caused the injury has contracted only for results, and is independent and free from direction or restraint in the performance of his obligation, the superior is not liable, in a case like the present.
The court was not in error, and the judgment is. affirmed.