APPEAL from Lancaster Common Pleas Circuit Court. Case stated. MCIVER, J.-This was an action to recover a balance alleged to be due plaintiff under a written contract with the defendant company for the delivery of a large num ber of railroad cross ties, according to certain specifications contained in the contract. The plaintiff having recovered a verdict for $600, the defendant moved for a new trial on the minutes, which being refused, judgment was entered on the verdict, from which defendant appeals upon the several grounds set out in the record. ties-Burden of The third, fourth, sixth, and seventh grounds raise questions of fact only, and this being an action at law, pure and simple, it is very obvious that we have no jurisdiction, to consider such questions. The first ground Acceptance of imputes error to the circuit judge in charging the or proof. jury that, if the defendant, the railroad company, took up and used the cross ties of plaintiff, whether they had been accepted or rejected by the inspector of the company, under the contract between the parties, the onus rested on the defendant to show that said cross ties were defective." We do not see any error in this. The contract provided that the cross ties to be delivered by plaintiff were to be inspected by an officer or agent of the company, and those which came up to the specifications were to be accepted and paid for at the stipulated price, while those which did not come up to the specifications were to be rejected. Hence the natural inference would be, and the jury would have the perfect right to assume, in the absence of any evidence to the contrary, that all the cross ties accepted and used by the company came up to the contract, and were to be paid for accordingly. But this natural, and we may say necessary, inference was susceptible of being rebutted by testimony showing that, although the cross ties were received, yet in fact some of them did not come up to contract; and this was what the jury were told, in effect, when they were instructed that the onus of proof would be upon the defendant to show that, although the cross ties were received and used by the company, yet in fact some of them were defective. The second ground of appeal does not correctly represent the charge of the circuit judge, and for this reason, if there were no other, cannot be sustained; for the jury were not charged that the defendant would be chargeable as for good ties at the rate stipulated for inthe contract, if the defendant used the cross ties of plaintiff, 47 A. & E. R. Cas.-20 Admissions whether they had been inspected and received or rejected by the inspector, but the charge was that the company would be presumably chargeable, in such case, for good cross ties. This was but saying, in a different form, the same thing which is made the subject of the first ground of appeal already con sidered. The fifth ground complains that the circuit judge “invaded the province of the jury in charging that they must receive and weigh the admissions of the plaintiff with great care, and that, unless the defendant was misled by them, the plaintiff is not now bound by them." The circuit judge did not use the language here attributed to him, but what he did say was "that you must receive and weigh these admissions of the plaintiff with great care; unless the defendant had done something, or had in some way acted upon them, they cannot have effect as estoppels against his claim now:" This remark was immediately after the judge had stated that the defendant had set up as a defense the admission of the plaintiff that a very large amount of the cross ties had been paid for, which the jury were told was a question of fact for them to determine, and then followed the charge excepted to as to the law of estoppel; which, as we learn from the argument, was not objected to as presenting an incorrect proposition as to the law of estoppel, but as inapplicable to the case. And the case of Thomson v. Sexton, 15 S. Car. 95, where this court said: "Error may be committed, not only by laying down to the jury incorrect general principles of law, but also by applying correct principles of law to cases in which they are not properly applicable." The defendant manifestly relied, as a part, at least, of its defense, upon certain admissions alleged to have been made by the plaintiff, and it is very obvious that such a defense might raise both questions of fact and law. The questions of fact would be whether such admissions were in fact made, and, if so, whether they were true, or made under a mistake, and these would be questions for the jury. The question of law, however, would be whether such admissions, whether true or false, or made under a mistake, would amount to an estoppel. It seems to us that the practical effect of the judge's charge was to leave the questions of fact to the jury without any intimation whatever as to his own opinion, and then to lay down the law of estoppel, in which we see no error. The judgment of this court is that the judgment of the circuit court be affirmed. MCGOWAN, J., concurs. Contract to Furnish Railroad Ties-Inspection-Acceptance of Check and Receipt of Bill.-The case of Robinson 7. Detroit, L. & N. R. Co., 84 Mich, 658, involved the question of the effect of the acceptance by the plaintiff of a check for the amount claimed by defendant to be due him for ties furnished the defendant as per a statement accompanying the check, and which plaintiff receipted, but on the same day sent defendant a protest against the inspection upon which the account was based. And it was held that the whole question as to whether it was a conclusive and binding settlement was properly left to the jury, and the judgment in favor of the defendant was affirmed. Contract to Fill a Trestle-Space Occupied by Culvert.-In East Tenn., Va. & Ga. R. Co. v. Matthews, 85 Ga. 457, it was held that a contractor who enters into a written contract with a railroad company to fill in a trestle on the track, cannot recover for the space occupied by a brick culvert constructed by the company under the trestle, where the contract provides for compensation by the cubic yard of dirt. Contract for Construction of Railroad by Stockholder Owning Nearly all the Stock. In Donoghue v. Indiana & L. M. R. Co. (Michigan, July 18, 1891), 49 N. W. Rep. 512, it was held that where the owner of nearly all the stock and franchises of a railroad company in his individual capacity for the construction of a part of the road, not purporting to sign the contract as agent nor in any other capacity than that of an individual, and there is no evidence of any original authority from the company, express or implied nor a subsequent ratification, the company is not bound thereby. ATLANTA & FLORIDA R. Co. v. KIMBERLY. (Georgia Supreme Court, April 24, 1891.) Independent Contractor-Creation of Nuisance-Liability of Railroad Company-A railroad may be properly built without the creation of a nuisance. Accordingly, a railroad company retaining no control over the manner of constructing its road, is not liable for the damages resulting from a nuisance created by an independent contractor in constructing the road, consisting of a pond and the accumulation of filth upon plaintiff's land. The fact that the company's superintendent directed the placing of a soil pipe at a certain point for drainage purposes, and the contractor placed a pipe of insufficient capacity in the wrong place according to his own judgment, does not render the company liable, although it may have had notice from the plaintiff that in his opinion the pipe was too small. Same-Ratification of Contractor's Acts.-A railroad company cannot be considered to have ratified the acts of an independent contractor in constructing its road whereby he creates a nuisance upon adjoining land, where it appears that possession of the road was not, at the time of the injuries complained of, delivered to the company. Cause of Sickness Produced by Nuisance-Evidence-Striking Out Part of Answer.-In an action against a railroad company for the creation of a nuisance upon the plaintiff's land, the plaintiff testified at the trial that the malaria of which he complained resulted from four causes, viz.: An embankment, a dam, a horse lot, and a hog lot. Plaintiff's petition contained no allegation as to the horse lot and the hog lot. The evidence as to these causes was stricken from his testimony. Held, that it was error to admit changed since it made the injury dependent upon two causes while the plaintiff assigned four. the answer as ERROR from Clayton Superior Court. J. Carroll Payne and N. J. & T. A. Hammond, for plaintiff in error. J. C. Reed and Dorsey, Brewster & Howell, for defendant in error. SIMMONS, J.-Kimberly sued the railroad company for damages, and alleged in his declaration "that while the company was constructing its road it made a deep cut, Case stated. and piled the fresh earth therefrom near his dwelling house, and damned up a small stream, and ponded the water therefrom near the house; and that it also stationed near the house a camp of convicts, whom it was using in said construction, and permitted the filth accumulating in the sinks of this camp and otherwise therein from the convicts to flow from the camp, and be deposited a few yards from the house, by reason of which the air in and around the house became infected with noxious scents, malaria, and other substances injurious to health, whereby plaintiff and his wife both became sick, and endured great pain and suffering, and were unable to attend to their daily duties," etc. The defense of the railroad company was that it did not do the acts complained of in the declaration; that, if they were done at all, they were done by the Chattahoochee Brick Company, an independent contractor, which it had employed to build the railroad from Atlanta to Senoia. On the trial of the case the jury found a verdict for the plaintiff, and the defendant made a motion for a new trial on the various grounds set out therein, which was overrruled, and it excepted. Liability for torts of independent contractor. The main question argued before us was whether under the facts of this case the railroad company was liable for the damages sustained by Kimberly. The general rule of law upon this subject is: Where an individual or corporation contracts with another individual or corporation exercising an independent employ. ment for the latter to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor's own methods, and not subject to the employer's control or orders except as to the results to be obtained, the employer is not liable for the wrongful or negligent acts of the contractor or of the contractor's servants. Code, § 2962; Harrison v. Kiser, 79 Ga. 588. And see the following text-books and cases therein cited: 1 Lawson, Rights, Rem. & Pr. § 295; 2 Thomp. Neg. 899 et seq.; Id. 909-913; 2 Wood, Rv. Law, $284. Also, I Add. Torts, 302; Cooley, Torts, 644; Bish. Non-Cont. Law, § 606; Pierce, R. R. 286-291; 1 Rorer, R. R. 468-470; Whit. Smith, Neg. 171 et seq.; Wood, Nuis. 77, p. 81: Dicey, Parties, (2d) Amer. Ed). 468 et seq. See especially the following cases: Peachy v. Rowland, 22 Law J. C. P. 81, 13 C. B. 182; Cuff v. Newark & N. Y. R. Co., 35 N. J. Law, 17; Clark v. Railroad, 39 Mo. 202; McCafferty v. Spuyten Duyvil & P. M. R. Co., 61 N. Y. 178; Hughes v. Cincinnati & S. R .Co., 39 Ohio St. 461, 15 Am. & Eng. R. Cas. 100; Hilliard v. Richardson, 3 Gray, (Mass.) 349; Eaton v. European & N. A. R. Co., 59 Me. 520; Wabash, St. L. & P. R. Co. v. Farver, 111 Ind. 195, 31 Am. & Eng. R. Cas. 134; Kansas Cent. R. Co.. v. Fitzsimmons, 18 Kan. 34; Painter v. Pittsburgh, 46 Pa. St. 220. To the general rule there are several exceptions: (1) Where the work is wrongful in itself, or if done in the ordinary manner, would result in a nuisance, the employer will be liable for injury resulting to third Same-Exceppersons, although the work is done by an inde- tions from pendent contractor. This is upon the principle ability. rule of non that if one contracts with another to commit a nuisance, he is a co-trespasser by reason of his directing or participating in the work; in other words, the rule is that, If the act or neglect which produces the injury is purely collateral to the work contracted to be done, and entirely the result of the wrongful acts of the contractor and his workman, the proprietor is not liable; but if the injury directly results from the work which the contractor engaged and was authorized to do, he is equally liable with the contractor." 2 Thomp. Neg. 903. See, also, authorities cited supra. (2) If, according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed, the employer will be liable, and not the contractor, because, it is said, it is incumbent on him to foresee such danger, and take precautions against it; and this is the principle upon which the cases of Bower v. Pante, 1 Q. B. Div. 321; Tarry v. Ashton, Id. 314; and Pickard v. Smith, 10 C. B. (N. S.) 470,- relied on by the defendant in error, were decided. And in this exception is included the principle that where the injury is caused by defective construction which was inherent in the original plan of the employer, the latter is liable. See authorities cited supra. Also Robbins . Chicago, 4 Wall. (U. S.), 657; Boswell . Laird, 8 Cal. 469; Lancaster v. Connecticut Mut. L. Ins. Co., 92 Mo. 460. For instance, if any person employs another to erect a building, and the plan of the building is defective, the walls being too thin and weak, and the building while in process of erection falls, and causes injury to a third person, the employer, and not the contractor, is liable. Or, if a contractor is employed to build a sewer, and the employer agrees to furnish the materials, |