made in the construction of the railroad.

Barriers had been placed across the highway, to prevent travellers from falling into the chasm. It became, in the construction of the railroad, necessary to remove the barriers, for the purpose of carrying out stone and rubbish from the deep cut. They were removed by persons in the employ of the corporation, who neglected to replace them. Currier and another person, driving along the highway in the night time, were precipitated' into the deep cut, and seriously injured. Currier brought his action against the town of Lowell, and recovered damages. This action was to recover of the railroad corporation the amount the town had been so compelled to pay. The railroad corporation denied their responsibility for the negligence of the persons employed in the construction of that part of the railroad where the accident took place, because that section of the road had been let out to one Noonan, who had contracted to make the same for a stipulated sum, and had employed the workmen. This defence was not sustained; nor should it have been. The defendants had been authorized by their charter to construct a railroad from Boston to Lowell, four rods wide. through the whole length. They were authorized to cross turnpikes or other highways, with power to raise or lower such turnpikes or highways, so that the railroad, if necessary, might pass conveniently over or under the same. St. 1830, c. 4, SS 1, 11. Now it is plain that it is the corporation that are intrusted by the legislature with the execution of these public works, and that they are bound, in the construction of them, to protect the public against danger. It is equally plain that they cannot escape this responsibility by a delegation of this power to others. The work was done on land appropriated to the purpose of the railroad, and under authority of the corporation, vested in them by law for the purpose. The barriers, the omission to replace which was the occasion of the accident, were put up and maintained by a servant of the corporation, and by their express orders; and that servant had the care and supervision of them. The accident occurred from the negligence of a servant of the railroad corporation, acting under their express orders. The case, then, of Lowell v. Boston & Lowell Railroad stands perfectly well upon its own principles, and is clearly distinguishable from the case at bar. The court might well say that the fact of Noonan being a contractor for this section did not relieve the

corporation from the duties or responsibility imposed on them by their charter and the law, especially as the failure to replace the barriers was the act of their immediate servant acting under their orders.

The only respect, it seems to us, in which this case aids the doctrine of the plaintiff, is that the learned judge who delivered the opinion of the court cites with approbation the case of Bush v. Steinman, 1 Bos. & Pul. 404, as "fully supported by the authorities and by well-established principles." It is sufficient to remark, in passing, that the decision of the case before the court did not involve the correctness of the rule in Bush v. Steinman. The case of Earle v. Hall, 2 Met. 353, is the third case cited by the plaintiff, as affirming the doctrine upon which he relies. Hall agreed to sell land to one Gilbert. Gilbert agreed to build a house upon and pay for the land. While the agreement was in force, Gilbert, in preparing to build the house on his own account, by workmen employed by him alone, undermined the wall of the adjoining house of the plaintiff. It was held that Hall was not answerable for the injury, although the title to the land was in him at the time the injury was committed. The general doctrine is stated to be that we are not merely to inquire who is the general owner of the estate, in ascertaining who is responsible for acts done upon it injurious to another; but who has the efficient control, for whose account, at whose expense, under whose orders, is the business carried on, the conduct of which has occasioned the injury. The case of Bush v. Steinman is cited as a leading case, very peculiar, and much discussed;" but we do not perceive that the point it decides is affirmed. The general scope of the reasoning in Earle v. Hall, as well as the express point decided, are adverse to it.

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These cases neither in the points decided nor the principles which they involve support the rule contended for by the plaintiff.

But the plaintiff says that the well-known case of Bush v. Steinman is directly in point, and that that case is still the settled law of Westminster Hall. If so, as authority, it would not conclude us; though, as evidence of the law, it would be entitled to high consideration.

Upon this case of Bush v. Steinman, three questions arise :1. What does it decide? 2. Does it stand well upon authority

or reason? 3. Has its authority been overthrown or substantially shaken and impaired by subsequent decisions?

1. The case was this: A., having a house by the roadside, contracted with B. to repair it for a stipulated sum; B. contracted with C. to do the work; C. with D. to furnish the materials; the servant of D. brought a quantity of lime to the house, and placed it in the road, by which the plaintiff's carriage was overturned. Held, that A. was answerable for the damage sustained. 2. At the trial, Chief Justice Eyre was of opinion that the defendant was not answerable for the injury. In giving his opinion at the hearing in banc, he says he found great difficulty in stating with accuracy the grounds on which the action was to be supported; the relation of master and servant was not sufficient; the general proposition, that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seemed to be too large and loose. He relied, as authorities, upon three cases only: Stone v. Cartwright, 6 T. R. 411; Lonsdale v. Littledale, 2 H. Bl. 267; and a case stated upon the recollection of Mr. Justice Buller.

Stone v. Cartwright lays no foundation for the rule in Bush v. Steinman. The decision was but negative in its character. It was that no action would lie against a steward, manager, or agent for the damage of those employed by him in the service of his principal. This is the entire point decided. Lord Kenyon said, "I have ever understood that the action must be brought against the hand committing the injury, or against the owner for whom the act was done." The injury complained of was done upon the land of the defendant, and by his servants. It consisted in so negligently working the defendant's mine as to undermine the plaintiff's ground and buildings about it, so that the surface gave way. The mine was in the possession of the defendant; the injury was direct and immediate; the workmen were the servants of the owner.

The case of Lonsdale v. Littledale, in its main facts, cannot be distinguished from Stone v. Cartwright. It stands upon the same grounds. The defendant's steward employed the under-workmen. They were paid out of the defendant's funds. The machinery and utensils belonged to the defendant, and all the persons employed were his immediate servants.

The third case was but this: a master having employed his

servant to do some act, this servant, out of idleness, employed another to do it; and that person, in carrying into execution the orders which had been given to the servant, committed an injury to the plaintiff, for which the master was held liable. What was the nature of the act done does not appear. And whether the case was rightly decided or not, it is difficult to see any analogy between it and the case the Lord Chief Justice was considering.

Mr. Justice Heath referred to the action for defamation, brought against Tattersall, who was the proprietor of a newspaper, with sixteen others. The libel was inserted by the person whom the proprietors had employed by contract to collect the news and compose the paper, yet the defendant was held liable. It would seem to be not very material who composed the paper, but who owned and published it.

Mr. Justice Heath also cited, as in point, the case of Rosewell v. Prior, 2 Salk. 460, which was an action upon the case for obstructing ancient lights. The defendant had erected upon his land the obstruction complained of. There had been a former recovery for the erection; this suit was for the continuance. The premises of the defendant had been leased. The question was, whether the action would lie for the continuance after his lease. "Et per cur. It lies; for he transferred it with the original wrong, and his demise affirms the continuance of it; he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions."

Mr. Justice Rooke, in addition to the cases of Stone v. Cartwright and Littledale v. Lonsdale, alluded also to the case of Michael v. Alestree, 2 Lev. 172, in which it was held that an action might be maintained against a master for damage done by his servant to the plaintiff in exercising his horse in an improper place, though he was absent, because it should be intended that the master sent the servant to exercise the horses there. See Parsons v. Winchell, 5 Cush. 595.

The examination of these cases justifies the remark that Bush v. Steinman does not stand well upon the authorities, and is not a recognition of principles before that time settled. The rule it adopts is apparently for the first time announced.

Does it stand well upon the reasoning of the court? We think all the opinions given in it lose sight of these two important dis

tinctions in the cases cited and relied upon, the acts done, which were the subjects of complaint, were either acts done by servants or agents, under efficient control of the defendants, or were nuisances created upon the premises of the defendants, to the direct injury of the estate of the plaintiffs. The servant of the limeburner was not servant of the defendant; over him the defendant had no control whatsoever; to the defendant he was not responsible. There was no nuisance created on the defendant's land. It does not appear that the defendant owned the fee of the highway. The case is put on the ground that the lime was put near the premises of the defendant, and with a view of being carried upon them. The lime was not on the defendant's land; he did not direct it to be put there: he had not the control of the man who put it there.

Mr. Justice Heath said, "I found my opinion on this single point, viz., that all the sub-contracting parties were in the employ of the defendant." This is not so, unless it be true that a man who contracts with a mason to build a house employs the servant of the man who burns the lime.

Mr. Justice Rooke says, "The person, from whom the whole authority is originally derived, is the person who ought to be answerable, and great inconvenience would follow if it were otherwise." It cannot be meant that one who builds a house is to be responsible for the negligence of every man and his servants who undertake to furnish materials for the same. Such a rule would render him liable for the most remote and inconsequential damages. But the act complained of did not result from the authority of the defendant. The authority under which the

servant of the lime-burner acted was that of his master. And neither the lime-burner nor his servant was acting under the authority of the defendant, or subject to his control. The defendant might, with the same reason, have been held liable for the carelessness of the servant who burnt the lime, and of the servant of the man who furnished the coals to burn the lime.

3. Has the doctrine of the case of Bush v. Steinman been affirmed in England, or has it been overruled and its authority impaired?

The plaintiff cites the case of Sly v. Edgely, at nisi prius, 6 Esp. R. 6. The defendant, with others, then owning several houses, the kitchens of which were subject to be overflowed,