Atlanta & F.R. Co. v. Kimberly

• Decision Date: 24 April 1891
• Citation: 13 S.E. 277,87 Ga. 161
• Parties: Atlanta & F. R. Co. v. Kimberly.
• Court: Georgia Supreme Court

13 S.E. 277

87 Ga. 161

Atlanta & F. R. Co. v. Kimberly.

Supreme Court of Georgia

April 24, 1891

Error from superior court, Clayton county; R. H. Clarke, Judge.

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, and piled the fresh earth therefrom near his dwelling-house, and dammed 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 overruled, and it excepted.

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 employment 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, 4 S.E. 320. 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, Ry. Law, § 284. Also, 1 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: Peachey v. Rowland, 22 Law J. C. P. 81, 13 C. B. 182; Cuff v. Railroad Co., 35 N. J. Law, 17; Clark v. Railroad, 39 Mo. 202; McCafferty v. Railroad Co., 61 N.Y. 178; Hughes v. Railway Co., 15 Amer. & Eng. R. Cas. 100; Hilliard v. Richardson, 3 Gray, 349; Eaton v. Railway Co., 59 Me.

520; Railway Co. v. Farver, 111 Ind. 195, 12 N.E. 296; Railway 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 persons, although the work is done by an independent contractor. This is upon the principle 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. Peate, 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 v. Chicago, 4 Wall. 657; Boswell v. Laird, 8 Cal. 469; Lancaster v. Insurance Co., 92 Mo. 460, 5 S.W. 23. 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, and the sewer-pipe furnished by the employer is too small, and damage is sustained by reason thereof, the employer is liable. (3) The next exception is where the wrongful act is the violation of a duty imposed by express contract upon the employer; for where a person contracts to do a certain thing he cannot evade liability by employing another to do that which he has agreed to perform. For instance, where a company undertook to lay water-pipes in a city, agreeing with the city that it would "protect all persons against damages by reason of excavations made by them in laying pipes, and to be responsible for all damages which might occur by reason of the neglect of their employes in the premises," and the company let out the work to a contractor, who used a steam-drill in such a manner as to frighten a traveler's horse and injure the traveler, it was held by the supreme court of the United States that the company was liable. Water Co. v. Ware, 16 Wall. 566. (4) The next exception is where a duty is imposed by statute. The person upon whom a statutory obligation is imposed is liable for any injury that arises to others from its non-performance or in consequence of its having been negligently performed, either by himself or by a contractor employed by him. Thus, where the statute imposed upon a railroad company, as a duty to the proprietors of inclosures through which the road passed, the obligation of placing stock-guards, and preserving or supplying fences, on the right of way, and protecting the inclosure from injury, in the construction of its road, the company was held liable for the failure to perform such duty, though resulting from the negligence of a contractor. Railroad Co. v. Meador, 50 Tex. 77. And it was upon this principle that the cases of Wilson v. White, 71 Ga. 506; Gray v. Pullen, 5 Best & S. 970; Hole v. Railroad Co., 6 Hurl. & N. 488; and Railroad Co. v. McCarthy, 20 Ill. 388,-relied upon by counsel for the defendant in error, were decided. And the case of Hinde v. Navigation Co., 15 Ill. 72, also relied upon for the defendant in error, falls under the same principle. In that case the charter imposed upon the company the duty of paying for all material taken for the use of its work, and expressly gave a remedy against the company; and it was held that the company could not by delegating its work to a contractor escape liability for material taken by him for the work; especially as he was working under the immediate supervision and direction of the engineer of the company. (5) The employer may also make himself liable "by retaining the right to direct and control the time and manner of executing the work, or by interfering with the contractor and assuming control of the work, or some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his interference. But merely taking steps to see that the contractor carries out his agreement, as having the work supervised by an architect or superintendent, does not make the employer liable; nor does reserving the right to dismiss incompetent workmen." 1 Lawson, Rights, Rem. & Pr. 299; Harrison v. Kiser, supra. (6) The employer may also be held liable upon the ground that he has ratified or adopted the unauthorized wrong of the independent contractor. See Harrison v. Kiser, supra; 2 Thomp. Neg. 903, 915.

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