Richards v. Consolidated Lighting Co.

• Court: Vermont Supreme Court
• Writing for the Court: POWERS
• Citation: Richards v. Consolidated Lighting Co., 90 Vt. 552, 99 A. 241 (Vt. 1916)
• Decision Date: 10 November 1916
• Parties: RICHARDS v. CONSOLIDATED LIGHTING COMPANY

99 A. 241

90 Vt. 552

RICHARDS v. CONSOLIDATED LIGHTING COMPANY

Supreme Court of Vermont

November 10, 1916

May Term, 1916.

CASE FOR NEGLIGENCE. Plea, the general issue. Trial by jury at the September Term, 1915, Washington County, Waterman, J presiding. Verdict directed, pro forma, for the defendant. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

John W. Gordon and H. W. Scott for the plaintiff.

Erwin M. Harvey and Fred E. Gleason for the defendant.

Present MUNSON, C. J., WATSON, HASELTON, POWERS and TAYLOR. JJ.

OPINION

POWERS

The defendant engaged Gitchell, a contractor, to build a coal conveyor at its electric plant, according to certain plans and prints which it furnished him. Gitchell sent several of his men, including the plaintiff, a carpenter, to do the work. While they were putting on the roof and the plaintiff was standing on a ladder nailing the strips, a team belonging to one Hayden and driven by one Scales, hit the ladder and knocked it out from under the plaintiff, causing him to fall a distance of ten or twelve feet and to suffer the personal injuries for which the suit is brought. A verdict was ordered for the defendant below,--an exception to which presents the only question here argued.

The conveyor on which the plaintiff was at work, was attached to the north side of the defendant's building and extended northerly about 35 feet. In front of it, the earth had been excavated in such a way as to leave an area about 34 by 37 feet. In this area, the defendant was accustomed to dump ashes and waste from the plant, and the only way this refuse could be removed was over a driveway which ran westerly to the highway. The defendant had an arrangement with the Barre & Montpelier Power & Traction Company whereby the latter was to remove these ashes as the defendant's necessities required or at the Traction Company's convenience. The Traction Company arranged with Hayden to do this work. At the time here in question, a considerable quantity of ashes had accumulated in the area, and the Traction Company ordered the ashes removed and Scales was proceeding to remove them accordingly when the team hit the ladder as stated. It did not appear at the trial that the defendant gave any special order about removing the ashes on that particular day. Nor did it appear that Scales was an incompetent driver, or the team an unsafe one. It did appear that the area was rather of a difficult place in which to handle a team, and that in order to turn the team around in it, as had to be done in order to get out with the ashes, it was necessary to cramp and back twice.

The plaintiff maintains that the relation between the defendant and the plaintiff was that of master and servant, and invokes the familiar safe-place rule, insisting that the defendant was guilty of actionable negligence in allowing the team to enter the area, thereby increasing the hazards of the plaintiff's position.

That the plaintiff was the defendant's servant we cannot agree. The question involved has received the recent attention of this Court in Morris v. Trudo, 83 Vt. 44, 74 A. 387, 25 L.R.A. (N.S.) 33. It was there held, in accordance with our previous decisions, that when one loans or hires his servant to another, the latter assumes the responsibilities of a master so far, and only so far, as he may exercise the authority of a master. But a master is one who not only prescribes what the result shall be but directs or may direct, the means and methods of doing the work. Bailey v. Troy & Boston R. R. Co., 57 Vt. 252, 52 Am. Rep. 129.

On the other hand, one who specifies the result, but leaves to the person employed to accomplish it the means and methods by which it is to be attained, thereby creates the relation of contractor and contractee, and not that of master and servant. Id.

Hoadley v. International Paper Co., 72 Vt. 79, 47 A. 169, is in point. There Spring was a builder and contractor for whom the decedent worked. The defendant had occasion to have certain repairs made on its mill and arranged with Spring to do the work. Spring sent his men, including the decedent, to do what was necessary. These men were not employed, paid, governed or directed by the defendant or any one in its employ. "Standing thus," says the court, "the question of fellow servant is not involved, as the decedent was the servant of Spring and not of the defendant."

The rule above stated is everywhere recognized and approved. Among the recent cases affirming it is Wilbur v. Forgione & Romano Co., 109 Me. 521, 85 A. 48, which, on account of similarity of facts, may here be referred to. In that case, the owners of a store in Portland let the contract to the Tyson Construction Company to erect an addition to their building. The Construction Company sublet the excavating to the defendant, and the shoring of adjacent buildings to the Isaac Blair Company. The plaintiff was an employee of the Blair Company, and when injured was at work on a ladder, the bottom of which rested in the excavation being made by the defendant. A team consisting of a pair of horses and a dump cart on its way out of the excavation with a load of rock hit the ladder and threw the plaintiff to the ground causing the injuries sued for. This team did not belong to the defendant but was owned by the Cash Fuel Company, and with its driver, Marston, was hired out to the defendant at a stipulated price per day. It was held that Marston was not the servant of the defendant and that the latter was not liable for his negligence.

Applying the rule to the case before us, it is obvious that the plaintiff was the servant of Gitchell and not of the defendant. The defendant told him what to do,--that is to say, to build the carrier according to the plans--but the methods, means and details of the work were in the hands of Gitchell. The fact that the owner has the right to inspect and supervise the work so far as necessary to see that it conforms to the plan does not affect the question. 1 Thomp. Neg. § 660.

It is equally apparent that the rule makes Scales the servant of Hayden or the Traction Company and not of the defendant. The latter had no authority over him so far as the care and management of the team were concerned.

It does not necessarily follow, however, that the defendant owed the plaintiff no duty of active care. While the general rule is that an owner does not owe to a person employed on his premises in the service of an independent contractor the duty to furnish a safe working place, yet such an employee is on the premises by his invitation, express or implied, and in cases where the owner retains control of the premises, he must use reasonable care to see that they are safe. Kelleher v. Schmitt, etc., Mfg. Co., 122 Iowa 635, 98 N.W. 482; Stevens v. United Gas, etc., Co., 73 N.H. 159, 60 A. 848, 70 L.R.A. 119; Sloss-Sheffield, etc., Co. v. Hubbard, (Ala. App.) 68 So. 571; Bennett v. Louisville & N. R. R. Co., 102 U.S. 577, 26 L.Ed. 235; Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 13 N.W. 499, 43 Am. Rep. 456.

The duty of a landowner toward an invitee was expressly recognized in Pierce v. Whitcomb, 48 Vt. 127, 21 Am. Rep. 120, and again in Bottum's Admr. v. Hawks, 84 Vt. 370, 79 A. 858, 35 L.R.A. (N.S.) 440, Ann. Cas. 1913A, 1025, and the very point now under discussion is covered by Hoadley v. International Paper Co., 72 Vt. 79, 47 A. 169, for it is therein in effect held that the owner was liable for negligence on its part that increased the dangers to the contractor's servant beyond those ordinarily attending the work.

But the negligence here was not that of the defendant or its servants or agents. The mere fact that the defendant allowed the team to enter the area does not show negligence on its part. If there was negligence anywhere it was the negligence of Scales, the driver, who, as we have seen, was not the defendant's servant. The general rule is that an owner is not responsible for the negligence of an independent contractor or his servant resulting in injuries to third persons, but that redress must be sought of the offending servant or the contractor. This rule, however, is subject to several well established exceptions. If the work contracted for is unlawful, or such as to create a nuisance, ( Bailey v. Troy & Boston R. R. Co., 57 Vt 252, 52 Am. Rep. 129), or is intrinsically dangerous, or in its nature calculated to cause injury to others unless precautions are taken, or if the owner negligently employs an incompetent or...