Cameron Mill & Elevator Co. v. Anderson

• Decision Date: 13 June 1904
• Parties: CAMERON MILL & ELEVATOR CO. v. ANDERSON.
• Court: Texas Supreme Court

81 S.W. 282

CAMERON MILL & ELEVATOR CO. v. ANDERSON.

Supreme Court of Texas.

June 13, 1904.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by F. M. Anderson against the Cameron Mill & Elevator Company. From a judgment of the Court of Civil Appeals affirming a judgment for plaintiff (78 S. W. 8), defendant brings error. Affirmed.

R. W. Flournoy and Geo. Thompson, for plaintiff in error. W. R. Parker, Capps & Canty, and Theodore Mack, for defendant in error.

GAINES, C. J.

The following statement of this case is taken from the opinion of the Court of Civil Appeals: "By permission of the city council, appellant caused to be dug in one of the streets of the city of Ft. Worth, adjacent to its elevator plant, a hole some thirty-four feet long, twenty-eight feet wide, and twelve or fourteen feet deep. The excavation was made for the purpose of putting in some underground storage tanks for fuel oil. Into this pit appellee, a boy of thirteen years, fell, and was seriously injured. The accident occurred about 9 o'clock at night, at a time when none of the workmen engaged in digging the pit were in or about the place. There were no lights or barricades or signals about it, and the street was dark. Appellee, who had no previous notice of the excavation, had either just mounted, or was in the act of mounting, his bicycle, to proceed up the street, when he was precipitated into the pit and injured as aforesaid. The actual work of making the excavation was being done by one McFadden under a contract with appellant by the terms of which he had exclusive control of the work. Appellant did not know that the pit was not guarded or protected at night, and had never given the contractor any instructions upon that point, but understood that the contractor was competent and experienced, and took it for granted that he would do what was necessary to make the work safe. The appellee had a judgment for $10,500, from which this appeal is prosecuted."

The question which goes to the foundation of the action is, was the defendant company liable, under the circumstances, for the acts and omissions of McFadden, whom it had employed to do the work under an independent contract? We were of the opinion when we granted the writ of error that the company was liable for McFadden's negligence, and that the Court of Civil Appeals did not err in so holding. We are still of that opinion. The question is ably discussed in the opinion of Mr. Justice Speer, who spoke for the court in the case, and the conclusion is amply supported by the numerous authorities cited by him. It would therefore be a profitless task to enter upon any extended discussion of the question. As we understand, the general rule is that one who is having a piece of work done by an independent contractor is not liable for the negligence of the latter, but to this rule there is a well-marked exception. So far as we have seen, the limitation of the rule has been by no one better expressed than by Judge Dillon. He says: "The general rule is stated in the preceding section, but it is important to bear in mind that it does not apply where the contract directly requires the performance of a work intrinsically dangerous, however skillfully performed. In such a case the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract." 2 Dillon's Mun. Corp. par. 1029. In our opinion, the present case falls strictly within the exception.

During the course of the trial, the court, over the objection of the defendant, permitted the introduction of testimony on behalf of the plaintiff to the effect that he was an industrious boy, was obedient to his mother, did not use tobacco or intoxicating liquors, and was industrious and economical in his habits. It was for the admission of the testimony as to his obedience to his mother and his habit of economy that we granted the writ of error. But we now think we erred in so doing. In the case of Houston & Texas Central Railway Company v. Cowser, 57 Tex. 293, which was a suit to recover damages for injuries resulting in death, the court state the rule in regard to the proper evidence to be introduced to show the amount of damages as follows: "The damages being for the pecuniary loss only, the party claiming them should then, as a general rule, at least be...