Parrott v. Chi. Great W. Ry. Co.

• Decision Date: 03 May 1905
• Citation: 103 N.W. 352,127 Iowa 419
• Parties: PARROTT v. CHICAGO GREAT WESTERN RY. CO.
• Court: Iowa Supreme Court

127 Iowa 419

103 N.W. 352

PARROTT

v.CHICAGO GREAT WESTERN RY. CO.

Supreme Court of Iowa.

May 3, 1905.

Appeal from District Court, Marshall County; O. Caswell, Judge.

Action for damages occasioned by the removal of earth beycnd the line of defendant's right of way. Trial resulted in a judgment against defendant, from which it appeals. Affirmed on condition.J. L. Carney, for appellant.

LADD, J.

The defendant's track and right of way extends through the plaintiff's 160 acres of land diagonally. In 1902 the company contracted with one Stoddart to remove the earth from certain cuts, including that in the portion of the right of way mentioned, and fill the approaches of a bridge near Melbourne. The complaint is that in doing so the earth was taken on each side of the track beyond the line between plaintiff's land and the right of way, “to a distance of 10 feet, * * * to a depth of * * * averaging 12 feet, * * * about a distance of 225 rods,” leaving the adjacent land without support and worthless for about 10 feet farther; that at places the sides of the cut were left perpendicular to a depth of 25 feet, and that the land will be likely to crumble and fall off 37 1/2 feet back; and that defendant has placed the right of way fence entirely on the plaintiff's land. The witnesses agree in saying that dirt was taken from beyond the right of way line, but differ as to the amount and area from which removed.

The work was done by Stoddart under the contract, and it is contended that this constituted him an independent contractor. In that event he cannot be said to have been the agent of the defendant, and it would not be responsible for the injury. An independent contractor is one who undertakes to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of his work. Humpton v. Unterkircher, 97 Iowa, 509, 66 N. W. 776. The test to be applied is whether the employé represents his employer as to the result of the work or as to the means. If the former, he is to be regarded as an independent contractor, but, if the latter, merely an agent or servant. Overhouser v. Am. Cereal Co., 118 Iowa, 417, 92 N. W. 74. With this rule in mind, let us examine the contract. By its terms, “the contractor agrees to do and furnish all work, tools, supplies, machinery and equipment of every kind necessary to do all the grading required for filling Melbourne bridge at Melbourne, Iowa, except one hundred (100) feet on each side of the center line of the Chicago, Milwaukee & St. Paul Railway Company's crossing. The material for this filling shall be taken out of a cut south of Melbourne and between stations 700 and 740, or any other cut designated by the chief engineer of the company's railroad. Such grading shall be done under the direction and to the satisfaction of the chief engineer of the company and his assistant, and the embankment shall be of such width as they shall direct.” The company was “to pay the contractor nineteen and one-half (19 1/2) cents for each cubic yard of grading done, regardless of the length of haul, the same to be measured once only by cross-section in excavation.” All estimates were to be made by the company's chief engineer and assistant, and payments to be made accordingly. The contractor obligated himself to maintain crossings and fences and keep stock off right of way, and to pay damages to stock or other property or to persons occasioned by his negligence, and also to save the company harmless from all liens; and it was farther agreed that “the contract may be terminated by said chief engineer whenever he shall deem it for the best interests of the company to so terminate it,” in which event the contractor was to be paid for the work done at the rate named. No plans and specifications were attached to the contract, and nothing in it indicated the result to be attained, save that the earth was to be taken from the cuts and placed in the fill. To what elevation or line was the fill to be raised? To what depth or width were the excavations to be made along the right of way? The contract contains no answers to these inquiries, save in stipulating that the “grading shall be done under the direction and to the satisfaction of the chief engineer of the company and his assistant.” The word “grading,” as used, is not synonymous with “filling,” for the contractor promised to furnish the work, tools, etc., to do “all the grading required for filling.” The earth to be used is described as “material for filling,” not grading, and the fill, when completed, is designated as an “embankment,” not a grade. Manifestly the word was not employed in the technical sense of bringing the surface at the bridge to a line or grade, but in the broader sense of including the excavating and filling contemplated by the agreement of the parties. See Ryan v. Dubuque, 112 Iowa, 284. Otherwise the company must be held to have authorized the contractor to excavate from its right of way in any manner or to any extent he might choose--a thing inconsistent with its duty to the public, and inconceivable in the protection of its own interests. As he was to do the grading (that is, excavate and fill) under the direction of defendant's agents, the engineers, Stoddart was not an independent contractor, but the servant of the company, and it is liable for any damages occasioned by the removal of the soil from plaintiff's land.

2. Instead of requiring the witnesses to estimate the market values of the land immediately before and after the injury complained of, the court allowed them to give the difference between such values, without first stating the values. While this practice is not to be approved as strictly accurate, it does not, under...