Wabash, St. Louis And Pacific Railway Company v. Farver
| Decision Date | 26 May 1887 |
| Docket Number | 12,380 |
| Citation | 12 N.E. 296,111 Ind. 195 |
| Parties | The Wabash, St. Louis and Pacific Railway Company v. Farver |
| Court | Indiana Supreme Court |
From the DeKalb Circuit Court.
Judgment reversed, with costs.
C. B Stuart and W. V. Stuart, for appellant.
C. E Emanuel, for appellee.
This action was brought by Farver against the railway company to recover damages for personal injuries alleged to have been sustained by him while lawfully pursuing his way along a public highway in a carriage which was overturned in consequence of his horse having taken fright at a portable steam-engine, alleged to have been negligently placed in or near the highway by the company. The confused state of the record makes it difficult to determine whether the case was tried upon one or both the complaints which are copied into the transcript. Although the one filed last is styled an amended complaint, the subsequent proceedings indicate that both were treated as in the record. The case seems to have been tried upon that theory.
Counsel are at variance, however, as to this matter, but the view we take of the case makes it quite immaterial whether it be one way or the other.
The evidence tends to show, without conflict or substantial dispute, that in September, 1882, the railway company was engaged in constructing a well or reservoir, from which to supply a water station on the line of its road, near Auburn, Indiana. Running water interfered with the work, and it became necessary to cause the accumulating water to be pumped out of the way, so as to prevent it from running into the well or reservoir which was in process of construction. The construction of the well and laying pipes thence to the water station had been committed to the charge of a Mr. Kress, an employee of the railway, who, with a force of men under his control, was engaged in providing means to supply the station with water. Williams, who resided in or near Auburn, was the owner of a small portable steam-engine, which he was accustomed to employ in sawing wood, threshing grain, pumping water, and the like, as opportunity offered. He contracted with Kress, for a stipulated per diem, to furnish and operate his engine in pumping, at such times as might be necessary, in order to keep the water from interfering with the work which the latter was constructing. Williams agreed to furnish his engine and personally superintend the running of it, and to provide and pay for such assistance as he needed in keeping the water from obstructing the progress of the work. If it became necessary that he should run the engine at night he was to receive extra compensation.
In pursuance of this agreement the latter placed his engine in a vacant lot, some six feet or more outside the line of a public highway which intersected the railway company's line at or near the point where the reservoir was being constructed. So far as appears, he selected the location of the engine, and controlled its operation, as the work he engaged to do required. When the accumulated water was pumped down to a certain level, or when persons were passing on the highway, the engine was stopped, and when the water rose to a certain height the pumping was resumed. While Williams was thus engaged in carrying out his agreement, the plaintiff's horse, in passing along the adjacent highway, took fright at the engine, and became unmanageable. The plaintiff was thrown from his carriage and injured. The question is, whether, under the circumstances, the railway company is liable for the negligence of Williams, assuming that he was negligent in operating his engine so near the public highway.
The rule which controls in cases of this class has become well established, and has more than once been recognized and applied by this court. Ryan v. Curran, 64 Ind. 345 (31 Am. R. 123); Sessengut v. Posey, 67 Ind. 408 (33 Am. R. 98); City of Logansport v. Dick, 70 Ind. 65 (36 Am. R. 166).
Under this rule, where work which does not necessarily create a nuisance, but is in itself harmless and lawful, when carefully conducted, is let by an employer, who merely prescribes the end, to another who undertakes to accomplish the end prescribed, by means which he is to employ at his discretion, the latter is, in respect to the means employed the master. If, during the progress of the work, a third person sustains injury by the negligent use of the means employed and controlled by the contractor, the employer is not answerable. The inquiry in such a case is, did the relation of master and servant subsist between the person for whom the work was done, and the person whose negligence occasioned the injury? If, in rendering the service, the person whose negligence caused the injury was in the course of accomplishing a given end for his employer, by means and methods over which the latter had no control, but which were subject to the exclusive control of the person employed, then such person was exercising an independent employment, and the employer...
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