Harrison v. Collins

• Decision Date: 06 May 1878
• Citation: 86 Pa. 153
• Parties: Harrison <I>et al. versus</I> Collins.
• Court: Pennsylvania Supreme Court

86 Pa. 153

Harrison et al. versus Collins.

Supreme Court of Pennsylvania.

January 23, 1878.

May 6, 1878.

January 23d 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 223.

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George Junkin and George W. Biddle, for plaintiffs in error.— In their instructions to the jury, the court below erred, first, in not telling them that, as the uncontradicted evidence showed the rigger's employment to be an independent one, the defendants were not liable for the result of an accident occurring during this independent employment. The evidence clearly demonstrated that the accident was occasioned solely by the acts of Connor and his men. He was employed as a master rigger to do a specific job, over which he had assumed entire control, and in regard to which he gave every direction. He was in no way, directly or indirectly, interfered with, and everything was left to his skill and judgment, untrammelled even by a suggestion. He was clearly a contractor, and not a servant, and his employment an independent one: Pack v. Mayor, 8 N. Y. 222; Kelly v. Mayor, 11 Id. 432. And the fact that such an employee is paid by the day makes no difference: Corbin v. America Mills, 27 Conn. 274; Forsyth v. Hooper, 11 Allen 419. The true test as to what is an independent employment is given in Shearman and Redfield on Negligence, sect. 74:

`Ascertain whether he renders the service in the course of an occupation representing the will of the employer only as to the result of his work, and not as to the means by which it is accomplished." And applying this test to the facts in this case, it will be conclusively demonstrated that Connor's employment was an independent one; that he was in no sense the agent or servant of the defendants, and therefore they are not responsible: Hilliard v. Richardson, 3 Gray 349; Barry v. City of St. Louis, 17 Mo. 121; Blake v. Ferris, 1 Selden 48; Painter v. Mayor of Pittsburgh, 10 Wright 221; Potter v. Seymour, 4 Bosw. 140, 148; Allen v. Willard, 7 P. F. Smith 374; Hunt v. Railroad Co., 1 Id. 475; O'Rourke v. Hart, 7 Bosw. 511; Vanderpool v. Husson, 28 Barb. 196.

The fact that a few of the laborers employed in the refinery assisted in pulling at the ropes does not alter the matter, as they were and became the servants, pro hac vice, of Connor, and acted entirely under his orders. The opening of the coal-hole was not only without the authority, express or implied, of the defendants, but without their knowledge.

The court erred secondly, in assuming throughout that the fact of the coal-hole being opened or uncovered at all constituted a nuisance, by reason of which a liability was fastened upon the defendants. In other words, a citizen who has a coal-hole in his pavement must have it so constructed that it will be physically impossible for a wrongdoer to open it. It is negligence unless he protects the hole from its being opened by any trespasser. This is novel doctrine, and such as has never been held in this state, or anywhere else, where the privilege of having such a coal-hole is accorded and regulated by law. The right to these vaults under the pavement has been recognised by universal use, as well as by legislation. They are very useful, and add to the value of the property, and unless they are allowed to be opened and used they lose their value.

The court erred thirdly, in assuming, against law and against common experience, that "the instant the rigger ceased to use the coal-hole for the purpose of a purchase, its control reverted to the defendants, and they were bound to protect it."

Is it reasonable that an owner of property shall have no time given him to undo the acts of a mere trespasser upon his property? Unless he instantly sets right what a bad man has set wrong, he must be held liable for all that may result from the wrongful act. Surely he is only bound to exercise the care of a prudent, careful man over any of his property. If this new doctrine be correct, then every house-owner must be himself on his pavement, or have some one there, to watch for and undo instantly the wrongful acts of every trespasser.

Pierce Archer, Jr., and Lewis C. Cassidy, for defendants in error.—The unlawful act of opening or leaving open a coal-hole on a public highway, or using it, or permitting or suffering it to be opened and used, for any other purpose than as a coal-hole for the reception of coals, was such omission of his duty to the public as rendered the owner and occupant liable, even though it was opened by one bearing the relation of an independent contractor or technical trespasser: Pickard v. Smith, 100 E. C. L. R. 470; Whiteley and Wife v. Pepper, 36 Law Times Reports 588. To constitute an independent employment, the contractor must be engaged in a lawful work and have exclusive control thereof: Homan v. Stanley, 16 P. F. Smith 464; Baird v. Pettit, 20 Id. 477; Reed v. City of Allegheny, 2 W. N. C. 189; West Chester Borough v. Apple, 11 Casey 284.

Even if Connor had been an independent contractor, yet both he and defendants, or either, are liable to the plaintiff for the unlawful act of leaving the coal-hole open on a public highway; it was a public nuisance: Shearman and Redfield on Negligence, sect. 84; McCleary v. Kent, 3 Duer 27; Ellis v. Sheffield Gas Co., 2 Ellis & B. 767; Gray v. Pullen, 5 Best & S. 970; Wiswall v. Brinson, 10 Iredell 554; Irvine v. Wood, 51 N. Y. 224; Congreve v. Morgan, 18 N. Y. 84.

Mr. Justice MERCUR delivered the opinion of the court, May 6th 1878.

This was an action by the defendant in error to recover damages for injuries which he sustained by falling into a coal-hole of the plaintiffs in error. They were sugar refiners, occupying buildings on Swanson street, in the city of Philadelphia. They purchased two large iron coolers, to use in their business. The coolers were brought by rail to within about one hundred feet of their works. They then employed John Connor, a rigger, to take the coolers from the cars and place them in their building. He was to be paid four dollars per day for his own services, and for each of his three assistant riggers. On each of these three men he made a profit of fifty cents per day. He was to furnish the ropes, hoisting apparatus, and all the necessary machinery incident to his occupation. Yet for the use of these he appears to have received an additional sum. The distance to move the coolers being so short, he moved them with skids and rollers, over the sidewalk. While so moving them he uncovered the coal-hole, and left it open, by reason of which the defendant was injured. The question presented is, whether the plaintiffs in error are liable for the injury thus sustained.

As one general principle pervades all the assignments, they will be considered together. The learned judge thought it unimportant whether Connor was merely the servant or agent of the plaintiffs, or whether his employment was an independent one; that if he used...