Louisville & N.R. Co. v. Hughes
| Decision Date | 20 February 1915 |
| Docket Number | 212. |
| Citation | 84 S.E. 451,143 Ga. 206 |
| Parties | LOUISVILLE & N. R. CO. v. HUGHES. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
It appears from a reading of the petition in this case (which was brought for the recovery of damages for injury to lands of the plaintiff, caused by throwing rock and other débris thereon while making excavations for a roadbed and for the diversion of waters from their channel and their natural course of flowage upon the lands of the plaintiff) that the suit was based upon alleged tortious acts of the defendant and of employés and agents for whose acts of negligence the defendant was directly responsible and liable. But under the evidence which was introduced upon the trial, and to the introduction of which no objection was offered, it appeared that the alleged tortious acts from which the injuries complained of flowed were committed, in large part, by an independent contractor, as was ruled in L. & N. R. Co. v Hughes, 134 Ga. 75, 67 S.E. 542, when this case was here before for review. In the decision in that case, in view of the fact that the same was remanded for another hearing, this court stated all of the instances in which the employer is liable for the negligence of the contractor, as they are stated in Civ. Code 1910, § 4415, without intending to hold that all of these provisions as contained in the code section should be given in charge to the jury, regardless of the developments of the case under the evidence at the new hearing; and the trial court should not have given in charge to the jury such of the provisions of that section as were not applicable to the case under the evidence.
(a) There was no evidence to show that the work which the independent contractor was to do in the present case was wrongful in itself, or, if done in the ordinary manner, would result in a nuisance.
(b) Nor that any one of the alleged wrongful acts of the contractor was in any way the violation of a duty imposed by express contract upon the employer, or a violation of a duty imposed by a statute.
(c) Paragraph 5 of section 4415 was clearly inapplicable, under the ruling made when the case was previously before this court.
(d) However, paragraph 2 of section 4415, stating the second instance in which the employer is liable for the negligence of the contractor, was involved, as it was a matter proper to be submitted to the jury whether, as a question of fact "according to previous knowledge and experience, the work to be done is in its nature dangerous to others, however carefully performed," and the court did not err in charging that provision of law, so that the jury might apply it to the evidence in the case.
It is provided in paragraph 6 of section 4415 of the Civil Code that "if the employer ratifies the unauthorized wrong of the independent contractor," he is liable for the negligence of the contractor. But the application of this principle should, by appropriate instructions, have been limited to the injuries caused by interference with the flowage of water, so as to cause it to pond upon the plaintiff's land, or to seep into it in such a way as to diminish its value. For if the defendant accepted the work so constructed by the independent contractor as to amount to a nuisance, the defendant became at once responsible for the existence of the nuisance, under a rule very similar to that which makes a principal responsible for unauthorized wrongs committed by his agent by ratifying them. 1 Thompson on Negligence, § 664.
The court's instructions as contained in several of the excerpts from the charge complained of, as to the measure of damages, both for the casting of rocks in the process of blasting and for the diversion of water from the natural and proper channel through which it had been accustomed to flow was open to the criticism that it allowed a recovery of damages against the defendant for alleged tortious acts in the respects referred to, which might have been the result solely of the negligence of the independent contractor, and which were not chargeable to ...
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