Scott Const. Co. v. Cobb

• Decision Date: 26 January 1928
• Docket Number: No. 12910.,12910.
• Citation: 86 Ind.App. 699,159 N.E. 763
• Parties: SCOTT CONST. CO. et al. v. COBB.
• Court: Indiana Appellate Court

86 Ind.App. 699

159 N.E. 763

SCOTT CONST. CO. et al.

v.COBB.

No. 12910.

Appellate Court of Indiana, in Banc.

Jan. 26, 1928.

Appeal from Martin Circuit Court; Milton S. Hastings, Judge.

Action by Sarah I. Cobb against the Scott Construction Company and another. Judgment for plaintiff, and the named defendant appeals. Affirmed.Fabian Gwin, of Shoals, and Walker & Hollett and Arthur J. Iles, all of Indianapolis, for appellant.

Carlos T. McCarty and Frank E. Gilkison, both of Shoals, for appellee.

McMAHAN, J.

Complaint by appellee to recover damages for injuries to real and personal property, caused by taking earth and stone from her land, and for casting and throwing stone upon her land, thus injuring the land, the buildings thereon, and killing two cows which were pasturing on her land. Appellant and George W. Gist were named in the complaint as codefendants. Gist was not served with process, did not appear, and was not defaulted. Appellant filed an answer of denial and payment. A trial by jury resulted in a verdict and judgment against appellant for $700.

The contentions that the verdict is not sustained by sufficient evidence, and that it is contrary to law, will be considered together. In support of these contentions appellant says that under the evidence Gist was an independent contractor; that the injuries for which appellee sued were caused by reason of the negligence of Gist; that there is no evidence that Gist was a servant of appellant; and that there is no evidence that appellant did or was the cause of any act being done which resulted in the injuries mentioned in the complaint.

The evidence discloses that the state highway commission and appellant had entered into a contract wherein appellant undertook to construct and complete a part of what was known as state highway No. 5, and which extended across a farm owned by appellee and located in Martin county. The country through which this road was constructed was hilly and on appellee's land was to a great extent covered and underlaid with stone which had to be blasted in order to bring the road to the necessary grade. At other places on her land it was necessary to make fills in order to bring the road up to grade. Appellant and Gist had entered into a contract, whereby the latter agreed to make all fills and cuts necessary to bring the road to grade according to the plans and specifications so that the concrete slab could be laid thereon. By the terms of this contract appellant was to furnish the necessary borrow pits, but all labor, material, and equipment required to make the cuts and fills were to be furnished and paid for by Gist, who was to receive therefor a fixed compensation. Before making this contract with Gist appellant had entered into two contracts with appellee. One of these contracts provided that appellant could take the earth from certain places on appellee's farm for making fills on the road. The other contract gave appellant the right to make use of stone on appellee's land for making the necessary concrete. The work of constructing the road across appellee's land was commenced in the fall of 1923, and continued until some time in the summer or fall of 1925. During the progress of the work by Gist, under his contract with appellant, he opened two borrow pits on appellee's land at places not included in or covered by the contract between appellant and appellee. He did a large amount of blasting on the road where it crossed over appellee's land. As a result of this blasting more than 1,000 tons of stone were cast and thrown upon appellee's land, greatly injuring the same. Appellee's barn and corncribs located about 500 feet from the road were struck by stone and damaged. One stone weighing six or seven tons struck the barn and after passing through the roof and floors was embedded in the ground. The house was struck by stone and damaged.

[1][2][3][4][5][6][7] The general rule is that one person is not liable for the acts or negligence of another person, unless the relation of master and servant exists between them; and that, where an injury has been done by a party exercising an independent employment, the person employing him will not be liable in damages for injury or death resulting from the wrongful acts or omissions of such person, or of the servants of such party. City of Logansport v. Dick, Adm'r, 70 Ind. 65, 36 Am. Rep. 166.

But there are many exceptions to this rule. It does not apply in the following cases: (1) Where the contract requires the performance of work intrinsically dangerous; (2) where a party is by law or contract charged with a specific duty; (3) where the act will create a nuisance; (4) where the act to be performed will probably cause injury to others, unless due precaution is taken to avoid harm; and (5) where the act to be performed is illegal. Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298;St. Paul Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485;City of Anderson v. Fleming, 160 Ind. 597, 67 N. E. 443, 66 L. R. A. 119; City of Logansport v. Dick, Adm'r, supra; People's Gas Co. v. Tyner, 131 Ind. 277, 31 N. E. 59, 16 L. R. A. 443, 31 Am. St. Rep. 433;Wright v. Compton, 53 Ind. 337;Falender v. Blackwell, 39 Ind. App. 121, 79 N. E. 393;Williams v. Fresno Canal Co., 96 Cal. 14, 30 P. 961, 31 Am. St. Rep. 172;Colgrove v. Smith, 102 Cal. 220, 36 P. 411, 27 L. R. A. 590;Omaha v. Jensen, 35 Neb. 68, 52 N. W. 833, 67 Am. St. Rep. 432; James v. McMinimy, 93 Ky. 471, 20 S. W. 435, 14 Ky. Law Rep. 486, 40 Am. St. Rep. 200;Louisville, etc., R. Co. v. Smith, Adm'r, 134 Ky. 47, 119 S. W. 241;Pine Mountain R. Co. v. Finley (Ky.) 117 S. W. 413 (not officially reported); Thompson v. Lowell, etc., St. R. Co., 170 Mass. 577, 49 N. E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323;Wetherbee v. Partridge, 175 Mass. 185, 55 N. E. 894, 78 Am. St. Rep. 486;Pickett v. Waldorf System, 241 Mass. 569, 136 N. E. 64, 23 A. L. R. 1014;Davis v. John L. Whiting & Son Co., 201 Mass. 91, 87 N. E. 199, 18 A. L. R. 782;Woodman v. Metropolitan R. Co., 149 Mass. 335, 21 N. E. 482, 4 L. R. A. 213, 14 Am. St. Rep. 427;Rockport v. Rockport Granite Co., 177 Mass. 246, 58 N. E. 1017, 51 L. R. A. 779;Stevens v. Town of Dedham, 238 Mass. 487, 131 N. E. 171;City, etc., R. Co. v. Moores, 80 Md. 348, 30 A. 643, 45 Am. St. Rep. 345;Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052, 33 Am. St. Rep. 692;Ohio Southern, etc., R. Co. v. Morey, 47 Ohio St. 207, 24 N. E. 269, 7 L. R. A. 701;Smith v. Bank, 135 Tenn. 398, 186 S. W. 465, 18 A. L. R. 788;McHarge v. Newcomer, 117 Tenn. 595, 100 S. W. 700, 9 L. R. A. (N. S.) 298;Norwalk Gas Light Co. v. Norwalk, 63 Conn. 495, 28 A. 32;Munroe v. Pacific, etc., Co., 84 Cal. 515, 24 P. 303, 18 Am. St. Rep. 248;Watson v. Mississippi, etc., Co., 174 Iowa, 23, 156 N. W. 188, L. R. A. 1916D, 101; 13 Neg. & Comp. Cas. 872.

We need not, and will not, enter into a discussion of all of the exceptions to the general rule. In support of the first of the above exceptions we content ourselves by citing Falender v. Blackwell, 39 Ind. App. 121, 79 N. E. 393;City of Anderson v. Fleming, 160 Ind. 597, 599, 67 N. E. 443, 66 L. R. A. 119. These cases also support the second exception. See, also, City of Logansport v. Dick, 70 Ind. 65, 36 Am. Rep. 166.

Supporting the third exception we quote from People's Gas Co. v. Tyner, 131 Ind. 277, 282, 31 N. E. 59, 60 (16 L. R. A. 443), 31 Am. St. Rep. 433, where it is said:

“It is settled that the owners of a lot may not erect and maintain a nuisance thereon whereby his neighbors are injured. If he does so, and the injury sustained by such neighbor cannot be adequately compensated in damages, he may be enjoined.”

In Wright v. Compton, 53 Ind. 337, 340, the court, in discussing the contention that the owner of a stone quarry was not liable for injuries caused by blasting when the work was done by an independent contractor, said:

“The question involved is not one of negligence on the part of the defendants. The act charged against them is, in itself, unlawful-not the act of blasting and quarrying rock, but the act of casting fragments of rock upon the plaintiff, to his injury. When the act, in itself, is unlawful, it is immaterial whether it is done ignorantly, negligently, or purposely, except in the measure of damages. Every person must so use his property, and exercise his rights, as not to injure the property or restrict the rights of others.”

And in James v. McMinimy, supra, the court said:

“Where the contractee employs the contractor to do work for his benefit, which, in the ordinary mode of doing it, he, as a prudent man, has a reason to believe is a nuisance, he is liable for any injuries that may result from it to third persons. The reason of the contractee's liability is that the contractee is liable for injuries resulting from his own unlawful act, and he cannot protect himself from such liability by employing others, under the name of independent contractors, to do the unlawful act. But where he, as a prudent man, has no reason to believe that the act contracted to be done is a nuisance, but is in itself lawful, and it turns out during the progress of the work that it is necessary to create a nuisance in order to do the work, then the contractee is not liable for injuries to third persons resulting from the nuisance before...