Harding v. City of Boston
| Citation | 163 Mass. 14,39 N.E. 411 |
| Parties | HARDING v. CITY OF BOSTON. |
| Decision Date | 04 January 1895 |
| Court | United States State Supreme Judicial Court of Massachusetts |
George S. Hale and William Schofield, for plaintiff.
F.E Hurd, for defendant.
The plaintiff's count in contract may be disregarded, there being no evidence to support it, and no question was saved in regard to it. The count in tort was for trespass upon the plaintiff's land consisting of or resulting from acts done by Gill and his men and by Ham & Carter. The only question is whether there was any evidence to show that the city was responsible for those acts, or for any of them. In our opinion, there was not.
Gill was a contractor, and he made a written contract with the city for the construction of certain sewers. The work to be done was settled in advance, and was to be according to plans and specifications which were furnished in advance for the entire work. The work was of a kind which did not necessarily or naturally involve any injury to the plaintiff's land. Such injury was not within the reasonable contemplation of the defendant. The city did not employ the workmen or laborers, and had no power to dismiss them. The contractor was to do the work with his own men, and to have it done by a certain date. The work was to be done to the satisfaction and acceptance of the defendant's agent, and supervision and superintendence were provided for, and the power of giving directions as to the work in certain particulars. These provisions appear to us to go no further than to enable the city to secure the proper performance of the work, and do not show that Gill and his men were servants of the city. Kelly v. Mayor, etc., of New York, 11 N.Y. 432; City of Erie v. Caulkins, 85 Pa.St. 247; School Dist. v. Fuess, 98 Pa.St. 600. The directions which the superintendent of sewers and the inspector might give were in order that certain results should be accomplished, and did not enable those officers to take the control and direction of Gill's men. Gill was still the contractor, in the responsible charge of his men. Looking at the contract as a whole, we think it clear that he should be regarded as an independent contractor, for the negligence of whose men the city was not responsible. An examination of the cases cited does not show any decision which appears to be in conflict with this view. Cases have often arisen, in this state and elsewhere, in which the general question has been considered and in some of them the distinction is rather nice. The relation of master and servant was held to exist in Linnehan v. Rollins, 137 Mass. 123; Brooks v Somerville, 106 Mass. 271; Brackett v. Lubke, 4 Alllen, 138; Railroad Co. v. Hanning, 15 Wall. 649; and was held or found not to exist in Conners v. Hennessey, 112 Mass. 96; Forsyth v. Hooper, 11 Allen, 419; Hilliard v. Richardson, 3 Gray, 349; Town of Pierrepont v. Loveless, 72 N.Y. 211; Harrison v. Collins, 86 Pa.St. 153; Reedie v. Railway Co., 4 Exch. 244. In some cases other considerations came in, so that the decisions did not rest on the law of master and servant; as, for example, cases where one was under a statutory obligation in respect to the thing to be done, or where the work was intrinsically dangerous, so that, in the natural course of things, injurious consequences must have been expected to result. Such cases are to be distinguished. Gray v. Pullen, 5 Best & S. 970; Bower v. Peate, 1 Q.B.Div. 321; Hole v. Railway ...
To continue reading
Request your trial