entirely immaterial whether the contract were written or verbal. The contractors were none the less the servants of the defendants, that there was a written agreement between the parties, setting forth with precision what each party was to do. Nor is there in this case that "independent employment" exercised by the contractors, which is mentioned in the case of Milligan v. Wedge, 12 Ad. & El. 737. The sole object of the corporation was to build a railroad. This they might do either by employing laborers by the day, or by contracting with different persons to construct different sections of the road. The defendants employed the persons that did the injury, and we are not aware that to such a state of facts the case of Bush v. Steinman, and the other cases in accordance with it, have been held to be inapplicable, or their doctrine considered as unsound. In the case of Duncan v. Findlater, 6 Cl. & Fin. 894, Lord Chancellor Cottenham and Lord Brougham both recognized the case of Bush v. Steinman as law.

In the case of Allen v. Hayward, 7 Ad. & El., N. S., 960, commissioners were appointed by an act of parliament for improving a navigation. They were not to be personally liable on contracts made, or for damages incurred in relation to anything done in pursuance of the act, but might be sued in the name of their clerk. The contractor, in executing part of the work contracted for, made a drain, which, from a defect in the materials, could not resist water, and without having any authority to do so, he turned in the water, which broke through and flooded the neighboring land. In an action on the case against the commissioners, sued by the clerk, the declaration stated that they made the diversion, and executed the work so negligently that in consequence thereof, and from no other cause, the water broke through and flooded the plaintiff's land. It was held, that on these facts the defendant was not liable. It was said by Lord Denman, in delivering the judgment of the court, that "if the commissioners constructed a weak and dangerous bank, they would be liable for the damage done by water improperly let in, whether by their servant or by a stranger, or by some natural accident. Supposing this to be true, we are then brought to the question, whether the commissioners are responsible for this ill construction; whether the contractor is to be regarded as their servant, so that they may be called the makers of this work by his agency."

After referring to several cases on this subject, his lordship says: "It seems perfectly clear, that in an ordinary case, the

contractor to do works of this description is not to be considered as a servant, but a person carrying on an independent business, such as the commissioners were fully justified in employing to perform works which they could not execute for themselves, and who was known to all the world as performing them. We find here none of the reasons which have prevailed in cases where one person has been held liable for the acts of another, as his servant "

In the case before us, the corporation might have employed an agent to superintend the building of the road, and to hire and contract with workmen, and to pay them on behalf of the corporation.. Lord Denman says, in Allen v. Hayward, that the opinions delivered by Lord Tenterden and Littledale, J., in Laugher v. Pointer, 5 Barn. & Cress. 547,"must be taken to lay down the correct law." Now Mr. Justice Littledale says, in the course of his opinion, "If the owner of a farm has it in his own hand, and he does not personally interfere in the management, but appoints a bailiff or a hirer, who hires other persons under him, all of them being paid out of the funds of the owner, and selected by himself or by a person specially deputed by him, if any damage happen by their default, the owner is answerable, because their neglect or default is his, as they are appointed by and through him." The case of Allen v. Hayward is to put upon the ground that the contractor is to regarded as a person carrying on an independent business. In the present case, if Dillon & Co. make a contract to build a certain section of the road, they are to be regarded as carrying on an independent business, it would seem. But suppose they had merely agreed to work upon the road for an indefinite period, is there any reason for holding the first contract to be an independent business, which would not equally apply to the second? It seems to us, that the effect of making such a very subtile discrimination between the two cases is merely to involve the question of the liability of the owner in greater uncertainty than before, and that the distinc-. tion between the two cases is too subtile to be of practical use. It is difficult for us to perceive why, in each case, the contractors would not be equally the servants of the corporation, and the illustration quoted from Mr. Justice Littledale is, we think, pertinent to the case.

In Quarman v. Burnett, 6 Mee & W. 499, 510, it is held that where a man is in possession of fixed property, he must take care that his property is so used and managed that other persons are not injured, and that whether his property be managed

by his own immediate servants, or by contractors or their serv ants.

The case of Lowell v. The Boston and Lowell Railroad, 23 Pick. 24 [34 Am. Dec. 33], is also in point. It was case for the negligence of the defendants by leaving open a deep cut into which the plaintiff drove in the night. The ground was taken that the defendants were not liable, because, at the time of the accident, that section of the road had been let out to one Noonan, who had contracted to make it for a stipulated sum, and who employed the workmen. But it was held that this circumstance did not relieve the defendants from responsibility, as the work was done for their benefit, under their authority, and by their direction. And it is said by Mr. Justice Wilde, that this question was very fully discussed and settled in the case of Bush v. Steinman.

It is the opinion of the court that there should be judgment on the verdict.

EMPLOYER NOT GENERALLY LIABLE FOR ACTS OF CONTRACTOR.-It is the general rule, subject to some limitations and exceptions which we will note hereafter, that where a person lets work to another, to be done by him inde pendent of any control by the employer, furnishing his own material and labor, the relation of master and servant is not created, and the employer is not liable for the negligent or improper execution of the work, nor responsi ble for the negligence or carelessness of the contractor in its performance; in short, employers are not generally liable for the acts of contractors. The reason for this immunity of employers from the acts of those in their service, and for the abrogation of the general rule relating to a master's liability for his servant's acts, is thus stated by Walker, J.: "The reason why the master is rendered liable for the negligent acts of his servant, resulting in injury to others, is because the servant, while he is engaged in the business of his master, is supposed to be acting under and in conformity to his directions, and to hold him to the employment of skillful and prudent servants. The presumption is one of law, and hence can not be rebutted. But in this case, the reason fails, and the presumption must also fail. These contractors, as we have seen, were not working under the direction or control of appellants, but under their contract, and were in no senɛe servants:" Scammon v. Chicago, 25 Ill. 424, 438.

Judge Strong, commenting upon the policy of the rule, said: "It is diffi cult to discover any substantial reason or good policy for holding the present defendants [employers] responsible. The negligence complained of was not theirs. It does not appear that they knew of it. The verdict determines that the fault was on the contractors. Over them the defendants had no more control than the plaintiff's husband had. They were not in a subordinate relation to the defendants, neither were they his agents. They were in an independent employment, and sound policy requires that in such a case the contractor alone should be held liable:" Painter v. Mayor of Pittsburgh, 46 Pa. St. 213. Though a number of decisions apparently conflict with the rule as above stated, and some are wholly irreconcilable with it,

yet that it is now the generally received doctrine is certain. Thus, where the owner of a piece of land employed a carpenter for a fixed price to alter and repair a building for him, and third parties were injured by reason of boards having been deposited in the highway by the servants of the contractor, it was held that the owner was not responsible: Hilliard v. Richardson, 3 Gray, 349; Potter v. Seymour, 4 Bosw. (N. Y.) 140; Alen v. Willard, 58 Pa. St. 374; Linton v. Smith, 8 Gray, 147; Forsyth v. Hooper, 11 Allen, 419; Brackett v. Lubke, 4 Allen, 138; Burgess v. Gray, 1 C. B. 578; Hunt v. R. R. Co, 51 Pa. St. 475; Brown v. Accrington etc. Co., 3 Hop. & C. 511; Young 7. R. R. Co., 30 Barb. 229; Schular v. H. R. R. Co., 38 Id. 653; Eaton V. European R. R. Co., 59 Me. 520; Prairie State Loan & Trust Co. v. Doig et al., 70 Ill. 52. And where a public licensed drayman was employed to haul a quantity of salt to a warehouse, and deliver it at a given rate per barrel, and injured a person on the sidewalk in unloading it, it was held that the employer was not liable: De Forest v. Wright, 2 Mich. 368. So, too, where the employer contracted with a person to cut and run logs down a stream, he having no control of either the cutting or running of them, it was held that the relation of master and servant did not exist, and that the contractor only was liable for an injury occasioned to others by his conduct in performing the contract: Moore v. Sanborn, 2 Mich. 519; Gourden v. Cormack, 2 E. D. Smith, 254; King v. Livermore, 16 Hun, 298; Wray v. Evans, 80 Pa. St. 102; Hale v. Johnson, 80 Ill. 185; West v. St. Louis, Vandalia & Terre Haute R. R. Co., 63 Ill. 545.

Indeed, there seems to be little difficulty in the question of liability where the relation which exists between the employer and the employee is established. Where the relation of master and servant exists, the master is liable for the acts of the servant; but where that of employer and contractor exists, the employer is not liable. The important question then is, When is the party employed a contractor? and this will more fully appear under the head of "Limitations upon the Rule," etc., post.

CONTRACTOR IS NOT ANSWERABLE FOR ACTS OF SUBCONTRACTOR.—A subcontractor bears the same relation to the contractor that the contractor does to his employer, and since their responsibilities and immunities rest upon the relation they sustain toward one another, the rule governing them will be the same; and so, if work is done under the immediate control and superintendence of a subcontractor, the latter is the party responsible for any injury done in the execution of the work. Thus, a builder had contracted with a committee to make certain alterations in a house, and he in turn made a subcontract with a gas-fitter to do a certain portion of the work. A quantity of gas escaped through the negligence of the workmen, and exploded, injuring the plaintiffs. It was held that the gas-fitter, and not the builder, was liable for the negligence: Rapson v. Cubitt, 9 Mees. & W. 710; 1 Car. & M. 64; McLean v. Russell, 22 Jur. 394; Shield v. Edinburgh and Glasgow R. R. Co., 28 Id. 539; Richmond v. Russell, 22 Sc. Jur. 394; Goslin v. Agricultural Hall Co., L. R., 1 C. P. Div. 482; Overton v. Freeman, 11 C. B. 873; Knight v. Fox, 5 Exch. 721; Hefferman v. Benkard, 1 Rob. (N. Y.) 432. But sce McCleary v. Kent, 3 Duer, 27; Wray v. Evans, 80 Pa. St. 102; Pearson v. Cox et al., L. R., 2 C. P. Div. 369; Slater v. Mersereau, 64 N. Y. 138.

LIMITATIONS UPON THE RULE THAT THE EMPLOYER IS NOT LIABLE FOR THE CONTRACTOR'S ACTS.-Although it is generally true that the employer is not liable or answerable for the acts of the party with whom he has contracted, yet the rule is not universal. The limitations upon it, or the cases in which the employer will be held responsible, are not numerous, and we will now point them out.

1. Employer is Liable when the Contract is Unlawful in itself, as where the work necessarily results in the creation of a nuisance or the like. Thus, where the plaintiff was injured by a pile of stones left in a public street by some servants, under a contract made by their master unlawfully to excavate the street, the employers were held liable. Lord Campbell, C. J., said: “It would be monstrous if the party causing another to do a thing were exempted from liability for the act merely because there was a contract between him and the person immediately causing the act:" Ellis v. Sheffield Gas Cons. Co., 2 El. & Bl. 767; Congreve v. Morgan, 5 Duer, 495; Congreve v. Smith, 18 N. Y. 79; Creed v. Hartman, 29 Id. 591; and in reference to creating a nuisance, Nelson, J., said, “where a person (company or corporation included) is engaged in a work, in the ordinary doing of which a nuisance necessarily occurs, the person is liable for any injury that may result to third parties from carelessness and negligence, though the work may be done by a contractor:" Ware v. St. Paul Water Co., 2 Abb. (U. S.) 261; Darmstaetter v. Moynahan, 27 Mich. 188; Detroit v. Cary, 9 Mich. 165; Pickard v. Smith, 10 C. B., N. S., 470; Upton v. Greenlees, 17 C. B. 71; Cincinnati v. Stone, 5 Ohio St. 38; Chicago v. Robbins, 2 Black, 418; Vanderpool v. Husson, 28 Barb. 196; Mathews v. West London Waterworks, 3 Camp. 403.

But in order to fix the liability upon the employer, it is necessary that the nuisance should be necessarily incidental to the performance of the work in the ordinary method. If the nuisance is the exclusive result of the negli gence of the contractor in not performing the work in the usual manner in which such work is done, the fault is then imputable to him alone, and the employer is not answerable: Mathews v. West London Waterworks, 3 Camp. 403; Sabin v. Railroad, 25 Vt. 363; Cuthbertson v. Parsons, 12 C. B. 304; Kellogg v. Payne, 21 Iowa, 575; Carman v. Steubenville & I. R. R., 4 Ohio St. 399; McCaferty v. S. D. & P. M. R. R., 61 N. Y. 178; Hilliard v. Richardson, 3 Gray, 349; Storrs v. Utica, 17 N. Y. 108; Water Co. v. Ware, 16 Wall. 566; Mayor v. Furze, 3 Hill (N. Y.), 616; Creed v. Hartman, 29 N. Y. 591; Milford v. Holbrook, 9 Allen, 21; Cuff v. Newark & New York R. R. Co. et al., 35 N. J. L. 17.

The decisions in these and similar cases are frequently put upon a further and broader ground, and it is declared that where one owes a duty to the public which he is bound to perform, he can not relieve himself of the responsibility by contracting with some one else to perform the labor to which the duty is incident. Read, J., said: "An owner who excavates a cellar and carries the excavation to the curbstone, for the purpose of constructing a coalvault under the sidewalk, is bound by his duty to the public to have it securely fenced," and he can not put this responsibility upon the contractor: Homan v. Stanley, 66 Pa. St. 464; Matheny v. Wolffs, 2 Duv. 37; and see Pfau v. Williamson, 63 Ill. 16. So the projection of a cornice over a public street can not be justified on the ground that a contractor built it: Grove v. Fort Wayne, 45 Ind. 429; nor can the fall of a house by reason of its weakness: Mullen v. St. John, 57 N. Y. 567; nor the fall of snow from a pitch-roof: Shipley v. Fifty Associates, 106 Mass. 194; nor generally any act that amounts to a nuisance which he has power to abate; and if he assents to the work by adopting and using it, he will be liable for any subsequent injury: Burgess v. Gray, 1 C. B. 578; Boswell v. Laird, 8 Cal. 469.

2. Employer is Liable if He Exercises Control, or retains the right to exercise control, over the work. To throw the responsibility wholly upon the contractor, it is necessary that he have entire command of the work, subject to no interference of the employers. In determining where the responsibility rests, the test is whether the defendant retained the power of controlling the