*

* *

injured by the contractor in the course of its due performance, or by its result, the employer is liable, for he causes the precise act to be done which occasions the injury; but for the negligence of the contractor not done under the contract, but in violation of it, the employer is in general not liable. 2. If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible on the same principle as in the last case, for I cause acts to be done which naturally expose others to injury. * 3. If I employ as contractor a person incompetent or untrustworthy, I may be liable for injuries done to third persons by his carelessness in the execution of his contract. 4. The employer may be guilty of personal neglect, connecting itself with the negligence of the contractor in such manner as to render both liable." But where the contract is for something that may lawfully be done, and is proper in its terms, and there has been no negligence in selecting a suitable person to contract with in respect to it, and no general control reserved either as respects the manner of doing the work or the agents to be employed in doing it,' and the person for

*

Louis, &c., R. R. Co., 63 Ill. 545; Schwartz v. Gilmore, 45 Ill. 455; Kelly v. New York, 11 N. Y. 432; Blake v. Ferris, 5 N. Y. 48; Robinson v. Webb, 11 Bush, 464. There is a careful examination of the whole subject in Eaton v. European, &c., R. R. Co., 59 Me. 520; S. C. 8 Am. Rep. 430, in which a railroad company was held not responsible for negligent fires set by contractors for building its road.

1 SEYMOUR, J., in Lawrence v. Shipman, 39 Conn. 586, 589. And, see remarks by CLIFFORD, J., in Water Co. v. Ware, 16 Wall. 566, 576; also, Clark v. Fry, 8 Ohio, (N. s.) 358; Chicago v. Robbins, 2 Black, 418; Railroad Co. v. Hanning, 15 Wall, 649; Cuff v. Newark, &c., R. R. Co., 35 N. J. 17; S. C. 10 Am. Rep. 205, where the authorities are collated and examined. Deford v. State, 30 Md. 179; Tibbetts v. Knox, &c., R. R. Co., 62 Me. 437; Rourke v. White Moss Colliery Co., 1

C. P. Div. 556; 2 C. P. D. 305; while the owner is not liable for the contractor's negligence in a matter collateral to the contract, he is where the very thing contracted for is improperly done and causes mischief on the lands of another, at least where the injury is done after he has accepted the completed work. Gorham v. Gross, 125 Mass. 232 and cases cited; Mulchey v. Meth. Soc., 125 Mass. 487. See Sturgis . Theol. Soc., 130 Mass. 414; Khron v. Brock, 144 Mass. 516; Chartiers, &c., Co. v. Lynch, 12 Atl. Rep. 435 (Penn.). If damage is caused by the fall of a wall in putting up a building forbidden by ordinance, both owner and contractor are liable. Walker . McMillan, 6 Can. S. C. R. 241.

2 As to the right of supervision which will render the employer liable as master of the contractor, compare Pack v. New York, 8 N. Y. 222;

whom the work is to be done is interested only in [*549] the ultimate result of the work, and not in the several

steps as it progresses, the latter is neither liable to third persons for the negligence of the contractor as his master, nor is he master of the persons employed by the contractor, so as to be responsible to third persons for their negligence.1

The term contractor if applicable to all persons following a regular independent employment, in the course of which they offer their services to the public to accept orders and execute commissions for all who may employ them in a certain line of duty, using their own means for the purpose, and being accountable only for final performance. A common carrier is such a contractor, and so is a drayman,' and so is the master of a tugboat.'

Master Responsible for his own Negligence. Undoubted as the general rule is, there is nevertheless an exception to it, resting on reasons as conclusive as those which support the rule itself. The exception is this: That if the injury results from the negligence of the master himself, he is responsible on the same rea

Kelly . New York, 11 N. Y. 432;
Eaton v. European, &c. R. R. Co., 59
Me. 520; Allen v. Willard, 57 Penn.
St. 374, with Sadler v. Henlock, 4 E.
& B. 570; Lowell v. Boston, &c., R. R.
Co., 23 Pick. 24; Linnehan v. Rollins,
137 Mass. 123; Schwartz v. Gilmore,
45 Ill. 455; Morgan v. Bowman, 22
Mo. 538; St. Paul v. Seitz, 3 Minn. 297;
Speed v. Atlantic, &c., R. R. Co., 71
Mo. 303; Fink v. Miss., &c., Co., 82
Mo. 276; Callahan v. Burlington, &c,
R. R. Co., 23 Iowa, 562; Cincinnati
. Stone, 5 Ohio (N. 8.) 38; Tiffin v.
McCormack, 34 Ohio St. 638; Brown
. Werner, 40 Md. 15; New Orleans,
&c., Co. v. Norwood, 62 Miss. 565;
Campbell v. Lunsford, 3 South. Rep.
500 (Ala.). The fact that the employer
pays the contractor's servants does not
conclusively determine that he is to
be regarded as their master. Rourke
. White Moss Colliery Co., 1 C. P.
Div. 556; 2 C. P. D. 305.

'Shearm. & Redf. on Neg. § 73; Schouler, Dom. Rel. 644-5. And the contractor is not liable for the direct consequence of the employer's negligence. Vanderslice v. Philadelphia, 103 Penn. St. 102.

De Forrest v. Wright, 2 Mich. 368; McMullen v. Hoyt, 2 Daly, 271. So where a city hired a cart, horse and driver, and directed driver to water certain streets, and had no other control of the driver, he is an independent contractor. Jones v. Mayor, &c., of Liverpool, L. R. 14 Q. B. D. 890.

3 Sproul v. Hemmingway, 14 Pick. 1. See Milligan v. Wedge, 12 Ad. & El. 737. A pilot, whom the master of a vessel is compelled by law to accept, is not his servant. Steam Nav. Co. v. British, &c. Nav. Co., L. R. 3 Exch. 330.

1

sons which would render him responsible if the relation did not exist. Under this head the following specification of negli gent conduct may be of service:

1. The master's negligence may consist in subjecting the servant to the dangers of unsafe buildings or machinery, or to other perils on his own premises, which the servant neither knew of nor had reason to anticipate or to provide against when he entered the employment, or subsequently.

The general rule is, that while the owner of real estate is not bound to provide safeguards for wrong-doers, he is bound to take care that those who come upon his premises by his express or implied invitation be protected against injury resulting from the unsafe condition of the premises, or from other perils, the exist

2

ence of which the invited party had no reason to look for. [*550] *Many cases in illustration of this rule are collected in another place, but it is sufficient here to mention the general rule, with some instances of its application to this particular class of persons.❜

The invitation to come upon dangerous premises without apprising him of the danger is just as culpable, and an injury resulting from it is just as deserving of compensation in the case of a servant as in any other case. Moreover, no reason of public policy, and none to be deduced from the contract of the parties, can be suggested, which would relieve the culpable master from responsibility. A man cannot be understood as contracting to take upon himself risks which he neither knows nor suspects, nor has reason to look for; and it would be more reasonable to imply a contract on the part of the master not to invite the servant into unknown dangers, than one on the part of the servant to run the

1 Cases under the English Employers' Liability Act of 1880. Cox v. Gt. West. Ry. Co., 9 Q. B. D. 106; Osborne v. Jackson, 11 Q. B. D. 619; Millward v. Midland Ry Co., 14 Q. B. D. 68; Heske v. Samuelson, 12 Q. B. D. 30; Cripps v. Judge, 13 Q. B. D. 583; Paley v. Garnett, 16 Q. B. D. 52. A master may stipulate with the servant against liability under this act. Griffiths v. Earl Dudley, L. R. 9 Q. B. D. 357. But that a master may not by agreement at time of hiring relieve

himself from a duty to the servant, see Little Rock, &c., Co. n. Eubanks, 3 S.W. Rep. 808 (Ark.); Kansas, &c, Co. v. Peavey, 29 Kan. 169. Nor from liability for negligence of a superior servant. Lake Shore, &c., Ry Co. . Spangler, 8 N. E. Rep. 467 (Ohio).

See post, p. *605–607.

3 The servant is entitled to the protection of this rule, though he is leaving his work without cause or excuse. Marshall v. Stewart, 33 Eng. L. & Eq. 1.

risk of them. But the question of contract may be put entirely aside from the case, and the responsibility of the master may be planted on the same ground which would render him responsible if the relation had not existed. Whether invited upon his premises by the contract of service, or by the calls of business, or by direct request, is immaterial; the party extending the invitation owes a duty to the party accepting it to see that at least ordinary care and prudence is exercised to protect him against dangers not within his knowledge, and not open to observation. It is a rule of justice and right which compels the master to respond for a failure to exercise this care and prudence.1

[*551]

*The terms in which the proposition has been stated will exempt the master from responsibility in all cases where the risks were apparent, and were voluntarily assumed by a person capable of understanding and appreciating them. No employer, by any implied contract, undertakes that his buildings are safe beyond a contingency, or even that they are as safe as those of his neighbors, or that accidents shall not result to those in his service from risks which perhaps others would guard against more effectually than it is done by him. Neither can a duty rest upon any one which can bind him to so extensive a responsibility. There are degrees of safety in buildings which differ in age, construction and state of repair, as there are also in the different methods of conducting business; and these, not the servant only, but any person doing business with the proprietor, is supposed to inform himself about and keep in mind when he enters upon the premises. Negligence does not consist in not putting one's buildings or machinery in the safest possible condition, or in not conducting one's business in the safest way; but there is negligence in not exercising ordinary care that the buildings and machinery, such as they are, shall not cause injury, and that the business, as conducted, shall not inflict damage upon those who themselves are guilty of no neglect of prudence.

and safe machinery and cars." BREESE, Ch. J., in Chicago, &c., R. R. Co. v. Swett, 45 Ill. 197, 203. Track inspection is a master's duty. The careless performance of which by a competent inspector renders the master liable. Durkin v. Sharp, 85 N. Y. 225; Drymala v. Thompson, 26 Minn. 40; Calvo v. R. R. Co., 23 S. C. 526. See Davis v. Centr. Vt., &c., Co., 55 Vt. 84. If a track gets out of repair by accident, the master's duty to the servant is to give him timely notice thereof. He is not bound to repair within any definite time. Henry v. Lake Shore, &c., Co., 49 Mich. 495. The usual rule does not apply where one is employed to rebuild a partly abandoned track. Brick v. Rochester, &c., Co., 98 N. Y. 211. But, see Van Amburg v. Rail

road Co., 37 La. Ann. 650; Gulf, &c., Co. v. Redeker, 67 Tex. 181; Bowen . Chicago &c. Ry. Co. 8 S. W. Rep. 230, (Mo.) But a railroad company is not liable to one of its employees for an injury occasioned by a latent defect in one of its bridges, where the company employed competent persons to supervise and inspect the bridge, by whom the defect was not discovered. Warner. Erie Railway Co., 39 N. Y. 468. See Ladd v. New Bedford, &c, R. R. Co., 119 Mass. 112; S. C. 20 Am. Rep. 331; Cooper v. Hamilton Manuf. Co., 14 Allen, 193. But where a bridge, bought with a road, is from its plan obviously weak to a proper inspection, it is liable. Vosburgh v. Lake Shore, &c., Co., 94 N. Y. 874.