Keys v. Second Baptist Church

• Decision Date: 02 December 1904
• Citation: 59 A. 446,99 Me. 308
• Parties: KEYS v. SECOND BAPTIST CHURCH.
• Court: Maine Supreme Court

59 A. 446

99 Me. 308

KEYS

v. SECOND BAPTIST CHURCH.

Supreme Judicial Court of Maine.

Dec. 2, 1904.

(Official.)

Exceptions from Supreme Judicial Court, Penobscot County.

Action by Isabelle Keys against the Second Baptist Church for personal injuries. Verdict for plaintiff for $1,500. Motion after verdict, trial, and exceptions by defendant. Motion sustained, unless plaintiff remits all of the verdict over $750, and exceptions overruled.

Argued before WISWELL, C. J., and SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Hugo Clark and B. L. Fletcher, for plaintiff.

F. J. Martin and H. M. Cook, for defendant.

SPEAR, J. This is an action for the recovery of damages for personal injuries, and comes up on motion and exceptions. The defendants are the owners of a church edifice situated on Columbia street, in the city of Bangor, and were making alterations therein. A license having been obtained therefor, a portion of the sidewalk and street in front of the church had been fenced off, and stagings erected for the prosecution of the work across the entire front of the church on Columbia street, and coming out about 2 1/2 feet from the wall, and going up pretty much the whole height of the building. On the morning of July 28, 1902, the plaintiff had occasion to pass along Columbia street past the church, and in so doing went under the stagings. When near the center of the church, a piece of green hemlock board fell, some 35 or 40 feet from a staging, striking the plaintiff upon the shoulders, and producing the injuries of which she complains. The plaintiff claims to recover, not because the piece of board fell, for there is no evidence with respect to how that happened, but because the defendants did not properly perform the duty resting upon them, under the circumstances of the case, in erecting suitable warnings and safeguards across the sidewalk at each side of the church, to give notice to travelers of the danger attendant upon passing under the stagings.

The defendants claim that they are not liable, even if proper safeguards were required and not erected, on the ground that the duty of erecting them did not devolve upon them at all, but upon Otto Nelson, who was doing the carpenter work upon the church as an independent contractor. That is, they say that they placed the contract of enlarging the church in the hands of a competent contractor, whose duty it was to put up the guards and warnings; that, after having so placed the contract, the defendants had nothing more to do with it; that the contractor took charge, assumed the control and management of the work, obtained a building permit in his own name, selected, hired, controlled, paid, and discharged the workmen, and that the defendants had no control over them or their acts, no power to dictate to the men as to how they should work or what they should do, no authority to instruct or discharge them, no matter how negligent they may have been.

The above is substantially the defendants' own statement of the elements which it is necessary to find in this case in order to constitute Otto Nelson an independent contractor, and we think they are fairly stated.

On the contrary, while claiming that the defendants are directly liable, the plaintiff asserts that, granting the position taken by the defendants that Nelson was an independent contractor, yet they are not released from liability, as the case conies within the well-established rule that they cannot shun their responsibility by an independent contract, when such contract involves acts which will constitute a nuisance, unless properly guarded against, or involve a duty to the public or a third person (Woodman v. Metropolitan R. Co., 149 Mass. 335, 21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427; Wilbur v. White, 98 Me. 195, 56 Atl. 657), or which will necessarily bring wrongful consequences, or that cannot be performed except under the right of the employer who retains the right of access (Boomer v. Wilbur, 176 Mass. 482, 57 N. E. 1004, 53 L. R. A. 172, and numerous other cases to the same effect). But a decision of this case does not necessarily involve a further consideration of the question of independent contractor, although the exceptions do not show upon which ground the presiding justice ruled, as a matter of law, that the duty of providing sufficient safeguards and precautions rested upon the defendant society. If upon either ground, the ruling was correct, and the exceptions must be overruled. We think the ruling was correct upon the ground that Nelson was not an independent contractor, and that the duty of providing proper safeguards rested directly upon the defendants. This depends, of course, upon the construction of the contract of the defendants with him to do the work. Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287. What constitutes an independent contractor within the meaning of the law applicable to this class of cases is stated in McCarthy v. Second Parish of Portland, 71 Me. 318, 36 Am. Rep. 320, to be "one who carries on an independent business, and in the line of his business is employed to do a job of work, and in doing it does not act under the direction and control of his employer, but determines for himself in what manner it shall be done." In Linnehan v. Rollins, supra, the presiding justice, in charging the jury upon the...