City & Suburban Ry. Co. v. Moores

• Decision Date: 19 December 1894
• Citation: 30 A. 643,80 Md. 348
• Parties: CITY & SUBURBAN RY. CO. v. MOORES et al.
• Court: Maryland Court of Appeals

30 A. 643

80 Md. 348

CITY & SUBURBAN RY. CO.

v. MOORES et al.

Court of Appeals of Maryland.

Dec. 19, 1894.

Appeal from circuit court, Baltimore county. Action by Minnie Moores and another against the City & Suburban Railway Company for personal injuries. Judgment for plaintiffs, and defendant appeals. Reversed.

Argued before ROBINSON, C. J., and BRYAN, McSHERRY, FOWLER, BRISCOE, PAGE, and BOYD, JJ.

Milton W. Offutt, for appellant. John Grason and John S. Ensor, for appellees.

BOYD, J. This suit was Instituted by Minnie Moores and her husband against the City & Suburban Railway Company for injuries sustained by her through the alleged negligence of the defendant's agents. While she was driving along the Baltimore & Yorktown Turnpike Road her horse was frightened at a steam engine which was being used for hauling cars containing ballast to be put on the tracks of the railway company. The defendant introduced in evidence two contracts between the president, managers, and company of the Baltimore & Yorktown Turnpike Road and one James B. White, by which the latter contracted to do certain work for the turnpike company, including the delivery of broken stone to be used in ballasting and back-filling the railway tracks constructed on the pike, and also in macadamizing the pike; and claims that the work was being done under these contracts by White as an Independent contractor. The defendant offered two prayers, which were refused by the court below, which raised the only questions presented for our consideration. The first prayer asked that the jury be instructed that if they found there was a contract between the turnpike company and White for doing certain work upon and adjacent to the bed of said turnpike, offered in evidence; that said White conducted the work under the terms of said contract, without any Interference on the part of the turnpike company or the defendant in mode or manner of doing the work; and that the injury complained of resulted from the running of an engine, engaged in the prosecution of the work, which belonged to and was under the control of said White,—then the plaintiffs could not recover. The second asked the court to instruct the jury that if they found that the turnpike company and White entered into the agreement offered in evidence to do certain work therein set out; that in the prosecution of the work White used approved and ordinary machinery, and employed competent and skillful workmen in the management and conduct of said machinery; that the work was prosecuted with the usual and ordinary care incident to the same; that the injury complained of was done during the prosecution of the work in the manner testified to by plaintiffs' witnesses; that the employes in, on, and about said engine were selected and employed by White, and were under his exclusive control,—then the plaintiffs could not recover, although the jury may believe the whistle was blown on the engine as testified to by plaintiffs' witnesses.

It will be observed that both of these prayers go upon the theory that White was a contractor to perform the work being done, which resulted in the alleged injury to Mrs. Moores, independent of and free from any control of the company as to how the work should be done, and hence the defendant was not responsible for the negligence of the servants of White. The general principles applicable to a case where work is to be done by a contractor upon his own responsibility, who is not subject to the control of the employer as to the manner in which it is to be performed, are so familiar and well established that it would be useless to go into any extended discussion of them. The difficulty generally is to determine who is to be regarded as the master of the wrongdoer under the facts arising in the particular case before the court, and whether there is any such relation existing between the person for whom the work is to be done and the negligent party as to hold the former responsible for damages sustained by a third person through such negligence. Even if the relation of principal and agent or master and servant does not, strictly speaking, exist, yet the person for whom the work is done may still be liable if the injury is such as might have been anticipated by him as a probable consequence of the work let out to the contractor, or if it be of such character as must result in creating a nuisance, or if he owes a duty to third persons or the public in the execution of the work. This case presents some further questions peculiar to itself from the fact that the defendant is not a party to the contracts offered in...