Boomer v. Wilbur
| Decision Date | 04 September 1900 |
| Citation | 57 N.E. 1004,176 Mass. 482 |
| Parties | BOOMER v. WILBUR et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H. J. Fuller, for plaintiff.
L. E White and F. S. Hall, for defendants.
The court instructed the jury, in substance, that where, under a contract between the owner of a house and the person doing the work, work is done upon the house, and the owner retains the right of access to and the control of the premises, and such work is ordinarily attended with danger to the public unless proper precautions are taken to avoid it, the owner is bound to the exercise of due care to see that such precautions are taken for the safety of the public; and if by reason of the failure to take such precautions, a person lawfully on the street and in the exercise of due care is injured, the owner is answerable notwithstanding the work is being done under a contract between him and the contractor. Having stated this as a general rule, the court applied it to this case as follows: 'If the defendants employed a person to repair the chimneys on their buildings adjoining the highway under the contract, to repair them for a fixed sum, and the defendants retained the right, retained control and the right of access to the building, and such work on the chimneys would ordinarily be attended with danger to the public, unless proper precautions to avoid it were taken, the defendants were bound to take proper precautions, or to see that proper precautions were taken, for the safety of the public; and, if the plaintiff was injured while she was lawfully on the street adjoining the defendant's premises, and in the exercise of due care, by reason of the failure of the defendants to take proper precautions, or by reason of their failure to see that proper precautions were taken, to avoid such injury, then the defendants are liable for the injury.' We understand these instructions to mean that, even if the defendants employed a competent independent contractor to repair these chimneys, who was to do the work without any dictation or supervision on the part of the defendants over the details of the work, or the manner in which it should be done, the defendants would be answerable for the failure of the contractor to take proper precautions to protect travelers upon the highway from falling bricks. While the master is liable for the negligence of the servant, yet when the person employed is engaged under an entire contract for a gross sum in an independent operation, and is not subject to the direction and control of his employer, the relation is not regarded as that of master and servant, but as that of contractor and contractee; and in such case the general rule is that the negligence of the contracting party cannot be charged upon him for whom the work is to be done; and this rule is applicable even where the owner of the land is the person who hires the contractor, and for whose benefit the work is done. Hilliard v. Richardson, 3 Gray, 349; Forsyth v. Hooper, 11 Allen, 419; Conners v. Hennessey, 112 Mass. 96; Harding v. City of Boston, 163 Mass. 18, 39 N.E. 411. There are, however, some well-known exceptions to the rule. If the performance of the work will necessarily bring wrongful consequences to pass unless guarded against, and if the contract cannot be performed except under the right of the employer who retains the right of access, the law may hold the employer answerable for negligence in the performance of the work. Woodman v. Railroad Co., 149 Mass. 335, 21 N.E. 482, 4 L. R. A. 213, was such a case, and the defendant was held liable for the act of an independent contractor hired by it to dig up and obstruct the streets for the purpose of laying down the track, upon the ground that the contract called for an obstruction to the highway which necessarily would be a nuisance unless properly guarded against. The same principle is further illustrated in Curtis v. Kiley, 153 Mass. 123, 26 N.E. 421, and Thompson v. Railway Co., 170 Mass. 577, 49 N.E. 913, 40 L. R. A. 345. Again, if the contract calls for the construction of a nuisance upon the land of the employer, he may be held answerable for the consequences. In Gorham v. Gross, 125 Mass. 232, the defendant had caused to be...
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