The St. Louis & San Francisco Railroad Company v. Madden

Citation93 P. 586,77 Kan. 80
Decision Date11 January 1908
Docket Number15,309
CourtKansas Supreme Court
PartiesTHE ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. R. M. MADDEN

Decided January, 1908.

Error from Butler district court; GRANVILLE P. AIKMAN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Independent Contractor--Liability of Employer. It is a general rule that one who employs another to do a piece of work is not liable for the other's collateral negligence unless the relation of master and servant exists between them. The following exceptions to the general rule apply to and govern this case (a) Whenever an injury to a third party results from the failure of the employer to perform a duty which he owes to such party he will not be permitted to avoid his liability by letting the performance of the work to another. (b) One who has a piece of work to perform which in its nature is dangerous to others is under obligation to see that it is carefully performed so as to avoid injury, and he cannot delegate the obligation to an independent contractor and thus avoid his liability in case the work is negligently done to the injury of another.

2. RAILROADS--Injury by Fire Set Out by Independent Contractor. A railroad company let a contract to another to burn a fire-guard along its right of way. Through the negligence of the contractor the fire escaped his control and damaged the property of the plaintiff. Held: (a) That the work was performed as a part of the operation of the railroad, and that the railroad company could not, by delegating the work to an independent contractor, avoid the liability placed upon it by statute (Gen. Stat. 1901, § 5923). (b) That, the work being of a character from which in the natural course of things injurious consequences to others might be expected to result unless means were adopted to prevent such consequences, the railroad company was bound to see that measures were taken to prevent such injury, and could not avoid the obligation by letting the work to an independent contractor.

L. F. Parker, W. F. Evans, and H. C. Sluss, for plaintiff in error.

T. A. Kramer, for defendant in error.

OPINION

PORTER, J.:

In 1904 plaintiff in error entered into a contract with Isaac Gregory to burn the grass on a strip 300 feet wide on each side of its right of way in Cowley county for a distance of seven miles. While engaged in burning this strip the fire escaped from his control, ran over the land of defendant in error and destroyed the grass on the ground and the hay in stack. The owner of the land recovered a judgment against the railroad company for the amount of the damages and attorneys' fees. The defendant brings error.

The sole contention of the railroad company is that Gregory was an independent contractor, not an employee of the company, and inasmuch as the relation of master and servant did not exist the company is not responsible for his negligence.

The contract between the railroad company and Gregory was in writing but was not put in evidence. It appears, however, that he had no other employment with the company, and the work was to be completed within a specified time, for which he was to be paid the sum of twelve dollars per mile. He testified that he was his own boss, and that he procured from the owners of adjacent lands their consent to enter thereon for the purpose of burning the fire-guard. On the day the fire was set out there was a strong wind blowing in the direction of the land of plaintiff, and it was this which caused the fire to escape control. Gregory testified that he was ordered by the foreman of the section gang of defendant to do the work that day, and that in pursuance of such order he set out the fire which caused the damage.

The single question to be determined, therefore, is whether under the circumstances of this case the railroad company is liable for the negligence of Gregory. The general rule is that the employer cannot be held responsible for the negligence of an independent contractor. The party injured must look to the person whose actual negligence caused the injury. (Kas. Cent. Rly. Co. v. Fitzsimmons, 18 Kan. 34; St. L., Ft. S. & W. Rld. Co. v. Willis, Adm'x, 38 Kan. 330, 339, 16 P. 728; Engel v. Eureka Club, 137 N.Y. 100, 32 N.E. 1052, 33 Am. St. Rep. 692; Hexamer v. Webb, 101 N.Y. 377, 4 N.E. 755, 54 Am. Rep. 703; Uppington v. City of New York, 165 N.Y. 222, 59 N.E. 91, 53 L. R. A. 550; The Wabash, St. Louis and Pacific Railway Company v. Farver, 111 Ind. 195, 12 N.E. 296, 60 Am. Rep. 696. For additional authorities see note to Central Coal & I. Co. v. Grider, 65 L.R.A. 455.) There are, however, numerous well-established exceptions to the general rule. One of these is said to be that, where the employer retains the right to exercise authority as to the manner and method in which the work shall be performed, he will be held liable for injuries to third parties the same as though the relation of master and servant existed between him and the contractor. With respect to this exception the test most usually applied is not whether the owner actually exercised control over the work but whether he had the right to exercise direction or control. ( Atlantic Transport Co. v. Coneys, 82 F. 177, 28 C. C. A. 388; Hardaker v. Idle District Council, [1896] 1 QB 335; Pickens & Plummer v. Diecker & Bro., 21 Ohio St. 212, 8 Am. Rep. 55; Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287.)

Of course, the fact that the owner exercised control over the work during its performance would furnish some ground for the inference that he had reserved the right to do so by the terms of the contract itself. It is also apparent that in a case where the injuries resulted directly from his interference it would make no difference whether or not the relation of master and servant existed, because, under such circumstances, he would be regarded as the principal tort-feasor. (Davie v. Levy & Sons, 39 La. Ann. 551, 2 So. 395, 4 Am. St. Rep. 225; Tutrix v. Sellers & Co., 39 La. Ann. 1011, 3 So. 363, 4 Am. St. Rep. 256; Maher v. Steuer, 170 Mass. 454, 49 N.E. 741.) On precisely the same principles rests the exception to the general rule which was recognized in Cloud County v. Vickers, 62 Kan. 25, 29, 61 P. 391, that where the injury is caused by defective construction inherent in the original plan of the employer or where defective plans and specifications for the work have been adopted by the employer the latter is liable. Again, where the work to be done is in its nature dangerous to others, however carefully performed, the employer will be held liable, because it is incumbent upon him to foresee such danger and to take precautions against it. (Atlanta Railroad Co. v. Kimberly, 87 Ga. 161, 13 S.E. 277, 27 Am. St. Rep. 231; Bower v. Peate, 1 QB 321; Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N.E. 618, 76 Am. St. Rep. 375.) Nor is a person permitted to escape liability for his failure to perform a duty imposed upon him by law. This principle is true whether the duty arises by virtue of a statute, as in C. K. & W. Rld. Co. v. Hutchinson, 45 Kan. 186, 25 P. 576, or where the duty is one imposed upon him by law. (Fowler v. Saks, 18 D.C. 570, 7 L.R.A. 649.) The cases illustrating the general rule and the numerous exceptions thereto may be found in a monographic note to Covington, etc., Bridge Co. v. Steinbrock, 76 Am. St. Rep. 375. (See, also, extensive note to the case of Central Coal & I. Co. v. Grider, 65 L.R.A. 455, and note to Louisville & N. R. Co. v. Tow, 66 L.R.A. 941.)

Some of the exceptions we have noted above apply with more or less force to the present case. It is the contention that the railroad company made itself liable by directing that the work should be done at a time when a strong wind was blowing. It directed the work to be done on a certain day. Presumably this was in accordance with the contract. There was evidence showing that the fire escaped from the control of Gregory on account of the high wind, and that except for the order and direction of the foreman the fire would not have been set out on that day. The fire was set out on Monday; the order of the foreman was given on the Saturday before, and there was no reason to suppose at that time that Monday would not be a suitable day for the work. It is not reasonable to presume that when the foreman directed Gregory to begin the work on the following Monday it was the intention thereby to deprive him of the use of all discretion in the matter, or that the order meant that he should begin the work on that day regardless of wind and weather. The right of the employer to exercise a limited control over the work without thereby destroying the independent character of the contract has been recognized by the courts in numerous cases. The rule seems to be well established that where the control reserved does not apply to the mode or manner of having the work done, and does not in any way take the work out of the hands of the contractor, it will not destroy the independent nature of the contract. (Railway Co. v. Loosley, 76 Kan. 103, 90 P. 990.) In other words, the relation of master and servant is not to be inferred from the reservation by the employer of powers which do not deprive the contractor of his right to use his own methods in accordance with his contract. (See cases cited in note to Central Coal & I. Co. v. Grider, 65 L.R.A. 455.) It would hardly be a safe rule to establish to say that the mere direction of an employer that he wanted the work done at a certain time would render him liable for injuries resulting to third parties, unless it were shown that the injuries were such as might reasonably have been expected to result from the giving of the order.

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