Sturges v. Society for Promotion of Theological Education at Cambridge
| Decision Date | 23 February 1881 |
| Citation | 130 Mass. 414 |
| Parties | Perley F. Sturges v. Society for the Promotion of Theological Education at Cambridge |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
New trial ordered.
S. J Thomas & C. P. Sampson, for the plaintiff.
O. W Holmes, Jr., for the defendant.
The declaration alleges that the defendant, being the owner of the building adjoining that occupied by the plaintiff, undertook to construct a drain from its cellar into the common sewer in North Street in Boston, and negligently performed the work, and thus caused tide-water to flow into the cellar of the plaintiff. The block of buildings in which the two cellars are situated was surrounded by a plank barrier constructed beneath the surface of the street to prevent the tide from flowing into the cellars. It was necessary to construct the drain from the defendant's cellar through this barrier in order to reach the common sewer. The defendant employed one Collins to do the work; and the evidence tended to show that he did the work negligently and improperly, so that, after he had finished the work, the tide flowed through the opening made in the barrier and through the defendant's cellar into the cellar of the plaintiff. Assuming, as the evidence tends to show, that Collins's relation to the defendant was that of a contractor, and not of a mere servant, the question is whether the defendant is liable for injuries caused by the improper construction of the drain.
The owner of a building, who has used due care in the employment of an independent contractor, is not responsible to third persons for the negligence of the latter, occurring in his own work in the performance of the contract, such as the handling of tools or materials, or providing temporary safeguards while doing the work. Hilliard v. Richardson, 3 Gray 349. Conners v. Hennessey, 112 Mass. 96. Gorham v. Gross, 125 Mass. 232. Butler v. Hunter, 7 H. & N. 826. As to such matters, pertaining to the mode in which he does the work, he is not the servant of the owner. But where the thing contracted to be done from its nature creates a nuisance, or where, being improperly done, it creates a nuisance and causes mischief to a third person, the employer is liable for it. Gorham v. Gross, ubi supra, and cases cited.
In the case at bar, the defendant had the right to make an opening...
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...& S. 970; Storrs v. City, 17 N.Y. 104; City v. Corey, 9 Mich. 164. The employer must at his peril see that due care is taken. Sturges v. Society, 130 Mass. 414; Stewart v. Putnam, 127 Mass. 403; Curtis Kiley, 153 Mass. 123; Wood, M. & S. § 316; 2 Thompson, Neg. 904; Wharton, Neg. § 180; Rob......
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