Sanford v. Pawtucket St. Ry. Co.

• Decision Date: 11 July 1896
• Citation: 19 R.I. 537,35 A. 67
• Parties: SANFORD v. PAWTUCKET ST. RY. CO.
• Court: Rhode Island Supreme Court

35 A. 67

19 R.I. 537

SANFORD

v. PAWTUCKET ST. RY. CO.

Supreme Court of Rhode Island.

July 11, 1896.

Action by Peleg A. Sanford against the Pawtucket Street-Railway Company for damages for personal injuries. Heard on demurrer to the plea. Overruled.

J. F. Lonsdale, J. S. G. Cobb, and J. M. Ripley, for plaintiff.

D. S. & W. C. Baker, for defendant.

TILLINGHAST, J. The first count in the declaration alleges that the defendant corporation, by its agents and servants, negligently, carelessly, and wrongfully placed and stretched, and negligently and wrongfully maintained, a rope or wire across Lonsdale avenue, a public highway in the city of Pawtucket, whereby said highway was rendered dangerous to travelers in carriages, and that the plaintiff, while riding along said highway in a carriage, in the exercise of due care, was caught by said rope or wire, and thrown to the ground, receiving serious bodily injury. The second count alleges that the defendant is a corporation, incorporated by the general assembly of the state, and that in the charter it is provided that the defendant shall be liable for any loss or injury that any person shall sustain by reason of any carelessness, neglect, or misconduct of its agents or servants in the construction, management, or use of its tracks, or of the streets where its tracks are laid; that the defendant intrusted the construction of its road, under a contract made by said defendant with certain contractors, not residing in the state, to said contractors, and that the latter, in the process of such construction, on, to wit, the 3d day of December, 1891, at said Pawtucket, negligently and carelessly placed and maintained a rope or wire across said Lonsdale avenue, in such a manner as to render said highway dangerous to travelers in carriages, whereby the plaintiff, on, to wit, said 3d day of December, 1891, who was then and there riding in a carriage along said public highway, in the exercise of due care, was caught by said rope or wire, thrown to the ground, and seriously injured, etc. To the first count of this declaration the defendant has filed a plea of not guilty. To the second count the defendant has filed a special plea in bar, setting up that the acts and deeds complained of therein were not the acts and deeds of the said defendant corporation, nor the acts and deeds of any of its servants or agents, but were the acts and deeds of an independent contractor, over whom, and over whose agents and servants, said defendant corporation had no management, care, or control; and also setting up that the said defendant corporation had no notice whatever of the alleged wrongful acts of said independent contractor, and that said wrongful acts did not continue for a sufficient length of time to impute notice thereof to the said defendant corporation. To this special plea in bar the plaintiff has demurred, on the grounds (1) that the fact that the work was done by an independent contractor, as set forth in said plea, does not constitute a valid defense to the plaintiff's cause of action; (2) that the lack of notice to the defendant, as set forth in said special plea, does not constitute a valid defense to the plaintiff's cause of action; and (3) that said facts in regard to the work being performed by an independent contractor and said want of notice, as set forth in said plea do not together constitute a valid defense to the plaintiff's cause of action.

The only question before us for decision, therefore, is as to the sufficiency of said special plea in bar. The plaintiff admits at the outset that the law, as stated by this court in Williams v. Tripp, 11 R. I. 454, 455, is correct, viz. that "when a person has work done for him under contract, without reserving to himself any direct control of the contractor or of his men, there is no relation of principal and agent, or of master and servant, between him and them, and consequently no such liability for their torts and negligences as is incident to that relation." But he contends that to this well-recognized rule there is one equally well-recognized exception, and that is that no one can escape from the burden of an obligation imposed upon him by law by the engaging for its performance a contractor. In view of this contention, it becomes necessary to ascertain precisely what obligation was imposed by law upon the defendant corporation regarding the construction of its road. Under the provisions of section 3 of its charter, the duties devolved upon the corporation are these, viz.: That it must put the streets and highways, in which it shall lay any rails, in as good condition as they were, and keep in repair such portions of the streets as shall be occupied by its tracks; and it makes it liable for any loss or injury that any person shall sustain by reason of any carelessness, neglect, or misconduct of its agents and servants in the management, construction, or use of said tracks or streets. Of course, the defendant cannot discharge Itself from its statutory obligations by engaging for their performance by another; that is to say, it is bound, at its peril, to put the streets in which it shall lay any rails in as good condition as they were before, and to keep in repair such portions of the streets as shall be occupied by its tracks, and hence, if it should contract with a third person to do this work, and this third person should fail to do it the defendant would doubtless be liable. Hole v. Railway Co., 30 Law J. Exch. 81, 6 Hurl. & N. 488. But such is not the case before us. Here the case shows, not that the defendant failed to perform its said statutory duty, but that an independent contractor, in constructing the road,—a thing which the defendant had the right to do itself, but was under no obligation to do,—was guilty of negligence. This negligence, however, cannot be imputed to the defendant, as the relation of master and servant was not created by the contract between the parties. The defendant had no control, either of the work or of the workmen employed to perform it. It merely prescribed the end to be accomplished, and contracted with another to accomplish that end by such means as the latter might in his discretion employ. And hence, as to the means employed, the contractor was not a servant or agent of the defendant, but himself a master,...