tle upon the track will be regarded as accidental, and at most they will be deemed but as trespassers, and be presumed to have escaped through the insufficiency of fences, and liable for any damage they might cause. But if the servants of the company used no means to avoid killing the cattle, and manifested such indifference to consequences, such a degree of rashness and wantonness as evinced a total disregard for the safety of the cattle, and a willingness to destroy them, although the destruction may not have been intentional, in justice and upon principle the company should be held responsible for the damages, unless it appear that the owner was equally in fault.12 The simple killing of an animal by a railway company's train is prima facie evidence of negligence on the part of their engineer.12 11. In one case 13 it was held that the negligence on the part of * the owner of cattle, which shall preclude his recovery for an injury to them by a railway train, must depend more upon its degree than upon the time when it occurs; and a distinction in this respect should be made, between one who suffers his cattle knowingly to go at large where they will naturally be exposed to passing trains upon a railway, and cases where the cattle get at large without the owner's knowledge, through defect of fences or their being temporarily thrown down. 12 Indianapolis, &c. R. Co., v. Meek, 10 Ind. 502. 13 C. H. & N. W. R. Co. v. Goss, 17 Wisc. 428. All questions of negligence, where there is any uncertainty in the facts, must be submitted to the jury under proper instructions. Congor v. Galena, &c. U. R. Co., id. 477. We have discussed this question in Briggs v. Taylor, 28 Vt. 180, 184. Post, § 176, pl. 2. * 505 *CHAPTER XX. LIABILITIES IN REGARD TO CONTRACTORS, AGENTS, AND SUB-AGENTS. SECTION I. Liability for Acts and Omissions of Contractors and their Agents. 1. Company not ordinarily liable for the act of the contractor or his servant. 2. But if the contractor is employed to do the very act, company is liable. 3. American courts seem disposed to adopt the same rule. 8. So long as one retains control of work he ment. 4. Distinction attempted between liability for 10. Railway company responsible for injuries acts done upon movable and immovable 5. Cases referred to where true grounds of distinction are stated. 6. No proper ground of distinction in regard to mode of employment. 7. Proper basis of company's liability explained. § 129. 1. THE general doctrine seems now firmly established, that the company is not liable for the act of the contractor's servant, where the contractor has an independent control, although subordinate, in some sense to the general design of the work. The distinction, although but imperfectly defined for a long time, has finally assumed definite form, that one is liable for the act of his servant, but not for that of a contractor, or of the servant of a contractor.1 1 Laugher v. Pointer, 5 B. & C. 547, where the subject is ably discussed, but not decided, the court being equally divided. Quarman v. Burnett, 6 M. & W. 499; Milligan v. Wedge, 12 Ad. & Ellis, 737; Knight v. Fox, 5 Exch. 721; Burgess v. Gray, 1 C. B. 578; Overton v. Freeman, 11 C. B. 867; s. c. 8 Eng. L. & Eq. 479; Peachey v. Rowland, 13 C. B. 182; s. c. 16 Eng. L. & Eq. 442; Rapson v. Cubitt, 9 M. & W. 710; Reedie v. London & N. W. Railw., 6 Railw. C. 184; Hobbitt v. Same, 6 Railw. C. 188; s. c. 4 Exch. 244; Steel v. Southeastern Railw., 16 C. B. 550; s. c. 32 Eng. L. & Eq. 366. In this last case, the action against the company was for flowing plaintiff's land, by the defective manner in which certain mason work was done, by the workmen of one Furness, who did the work as a contractor under the company, but under the superintendence of one Phillips, the surveyor of the company, who furnished 2. But if the contractor or his servants do an act which turns out to be illegal, or a violation of the rights of others, and it be the very act which he was employed to do, the employer is liable to an action. Lord Campbell, Ch. J., here said, “The position in effect contended for by defendants' counsel, I think wholly untenable, namely, that where there is a contractor, the employer can in no case be made liable. It seems to me, that if the contractor do that which he is ordered to do, it is the act of the employer, and this appears to have been so considered in the cases" [upon the subject]. "In these cases nothing was ordered, except that which the party giving the order had a right to order, and the contract was to do that which was legal, and the employer was held properly not liable for what the contractor did negligently, the relation of master and servant not existing. But here the defendants employ a contractor to do that which was unlawful. Upon the principle contended for, a man might protect himself in the case of a menial servant, by entering into a contract." 3. The American cases have not as yet, perhaps, assumed that definite and uniform line of decision which seems to obtain in the English courts upon the subject. But there is a marked disposition, manifested of late, to adopt substantially the same view. But some of the earlier cases in this country and in England, hold the employer responsible for all the acts and omissions of a contractor, the same as for those of a servant.4 the plans. It appeared that the injury resulted from the workmen not following the directions of Phillips. The court held the action could not be maintained. Cresswell, J., said: "If it could have been shown that the plaintiff's land was flooded in consequence of something done by the orders of Phillips, the company's surveyor, it might have been said that was the same as if Phillips had done it with his own hands, and then the company would have been responsible. This work was done under a contract, and there is nothing to show negligence in any one for whose acts the company are responsible." This seems to be placing the matter upon its true basis. See also Young v. New York Central Railw., 30 Barb. 229. But if a servant of the contractor, while employed on the work, receive an injury from a passing train of the company through the fault of their servants, and without his own fault, he may maintain an action against the company. Ib. See also City of Cincinnati v. Stone, 5 Ohio N. S. 38. Ellis v. The Sheffield Gas Consumers' Co., 2 El. & Bl. 767; s. c. 22 Eng. Law & Eq. 198. 3 Kelly . Mayor of New York, 1 Kernan, 432; Blake v. Ferris, 1 Selden, 48; Pack v. The Mayor of New York, 4 Selden, 222; Hutchinson v. York and Newcastle Railw., 5 Exch. 343; s. c. 6 Railw. C. 580, 589. 4 Bush v. Steinman, 1 B. & P. 404; Lowell v. Boston and Lowell Railw. 23 * 4. At one time a distinction was attempted to be maintained, between the liability of the owner of fixed and permanent property and the owner of movable chattels, for work done in regard to them, or with them, making the employer liable in the former and not in the latter case. But the distinction was found to rest upon no satisfactory basis, and was subsequently abandoned." 5. The grounds of all the decisions upon this subject are fully and satisfactorily explained, in the late cases of Ellis v. Gas Con'sumers' Company,2 and Steel v. Southeastern Railway.1 6. Sometimes a distinction has been attempted to be drawn, in regard to the employer, whether the employment were by the job or by the day, making him liable for the acts of the operatives in the latter and not in the former case. But this is obviously no satisfactory ground upon which to determine the question, although it might, in point of fact, come very nearly to effecting the same, or a similar separation of the instances in which the employer is or is not liable. 7. The true ground of the distinction being, after all, not the Pick. 24. See also, upon this point, Mayor of New York v. Bailey, 2 Denio, 433; Elder v. Bemis, 2 Met. 599; Earle v. Hall, id. 353. In the latter case the subject is very ably discussed, and the early cases somewhat qualified. And in` the case of Hilliard v. Richardson, 3 Gray, 349, there is a very elaborate and satisfactory opinion, by Mr. Justice Thomas, in which the cases are very extensively reviewed, and the old rule of Bush v. Steinman distinctly repudiated. 5 Rich v. Basterfield, 4 C. B. 783; The King v. Pedley, 1 Ad. & Ellis, 822. And see Fish v. Dodge, 4 Denio, 311. Littledale, J., in Laugher v. Pointer, 5 B. & C. 547. Parke, B., in Quarman v. Burnett, 6 M. & W. 510; Randleson v. Murray, 8 Ad. & Ellis, 109. Allen v. Hayward, 7 Q. B. 960; Reedie v. London and N. W. Railw., 4 Exch. 244. But it is still maintained, by some, that if the owner or occupier of real estate employ workmen under a contract which presupposes the underletting of the work, or the employment of subordinates, and in the course of the accomplishment of the work any thing is done, by digging or suffering rubbish to accumulate, which amounts to a public nuisance, whereby any person suffers special damage, the owner or occupier of the premises is liable. Bush v. Steinman, 1 B. & P. 404; Randleson v. Murray, 8 Ad. & Ellis, 109. But this rule is questioned. Fish v. Dodge, 4 Denio, 311. And after all it seems, like the other phases of the same question, to resolve itself into an inquiry, how far the first employer may fairly be said to have done, or caused to be done, the wrongful act. Burgess v. Gray, 1 C. B. 578. If the nuisance occurred naturally, in the ordinary course of doing the work, the occupier is liable; but if it is some irregularity of the contractor, or his servants, he alone is responsible. See Carman v. Stubenville and Ind. Railw., 4 Ohio N. S. 399; Thompson v. New Orleans & Carrollton Railw., 1 Louis. Ann. 178; s. c. 4 id. 262; s. c. 10 id. 403. form of the employment, or the rule of compensation, but whether the work was done under the immediate control and direction. of the employer, so that the operatives were his servants, and not the servants of another, who was himself the undertaker for accomplishing the work, and having a separate, and independent, and irresponsible control of the operatives, bringing the question again to the same point, the difference between a contractor and a servant.7 8. In a recent case before the Privy Council, where the owner of land employed Indian laborers in the Mauritius, at so much per acre, to clear it, which they did, partly by lighting a fire so negligently that sparks were carried by the wind upon the land of another, and there burned down his house, it was held, upon the ground that the owner of the land retained control of the work, and made constant interference in the conduct of it, that he was responsible for the negligence of the workmen, as the relation of master and servant, or superior and subordinate, continued.8 9. Where one gratuitously permits a carpenter to do a piece of work in a shed belonging to the former, and one of the workmen. of the carpenter, in the course of the work, dropped a match with which he had lighted his pipe, and thereby set fire to the shed, it was held the master was not responsible for the damage; notwithstanding the jury found it occurred from the negligent act of the defendant's workman.9 But it would have been otherwise if the negligence had occurred in the course of the employment. 7 In the case of Blackwell v. Wiswall, 24 Barb. 355, is an elaborate opinion by Harris, J., which was affirmed by the full court, which holds that the only ground upon which one man can be made responsible for the wrongful acts of another is, that he should have controlled the conduct of such person. And that the person who is made liable for the acts of another must stand in the relation of superior. Hence one who had obtained the exclusive right of a ferry, and who suffered another to operate it for his own benefit, as lessee, is not responsible for any injury inflicted upon passengers, through the negligence or unskilfulness of the servants of the lessee, who conduct the ferry, and it would make no difference if the lessee had been himself conducting the ferry, at the time the injury accrued. And if it were true that the grantee of the ferry was guilty of a breach of duty, in making the lease, it will not entitle any one to sue on that account, unless he has sustained injury resulting from the act of leasing directly, and not incidentally merely. 8 Serendat v. Saisse, Law Rep. 1 P. C. 152; s. c. 12 Jur. N. S. 301. The case was governed by the rule laid down in the Code Napoleon, but that is not essentially different from the rule of the English law upon the subject. 9 Williams v. Jones, 3 H. & C. 602; s. c. 11 Jur. N. S. 843; Woodman v. |