Vickebs v. Kanawha & W
| Decision Date | 09 December 1908 |
| Citation | 63 S.E. 367,64 W.Va. 474 |
| Court | West Virginia Supreme Court |
| Parties | VICKEBS . v. KANAWHA & W. v. R. CO. |
The general rule, subject to exceptions, is that where one has contracted with a competent and fit person exercising an independent employment to do a piece of work, not in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third persons to unusual danger, according to the contractor's own methods, and without being subject to control, except as to results of his work, will not be answerable for the wrongs of such contractor, his subcontractors, or his servants committed in the prosecution of such work.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1245, 1246, 1248; Dec. Dig. § 315.*]
But with respect to railroads, the nonassignable duty of the master to provide its servant a reasonably safe place to work extends to the entire track over which the servant is required to pass in the discharge of his duties, and this is a positive duty, which, although intrusted to an independent contractor, will not absolve it from liability for the nonperformance thereof.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*]
Where one is employed by a railroad company as an independent contractor, to do certain work in the construction of its roadbed, in all matters incident to the use of its tracks permitted by such company the contractor and his workmen represent the will of the company, and its responsibility remains.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1254; Dec. Dig. § 317.*]
Although a railroad company employ a competent independent contractor to do certain work, and in the execution of his contract permits him to suspend over its tracks guy ropes, the effect of such contract, with respect to such ropes, is simply to delegate to such independent contractor performance of the nonassignable duty of such company to maintain a reasonably safe place for its servants to work, rendering it liable for his negligent performance thereof.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. §• 103.*]
Where a railroad company has permitted' the erection of guy ropes over its tracks, by an independent contractor employed to perform a part of the work of constructing its roadbed, it will nevertheless be rendered liable for any negligence on the prt of sucah independent contractor in relation to such guy ropes, whether competent or not, although it may not have had actual notice of such negligence in time to have avoided injury to its servant resulting therefrom. In such cases the law requires inspection and tests adequate to avoid the dangers.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 175; Dec. Dig. § 103.*]
Where a railroad company intrusts performance of any of its positive duties to its servants to an independent contractor, his relationship to the defendant becomes that of vice principal, and his negligent performance of those duties becomes notice to his principal, rendering it liable for injuries to its servants resulting therefrom.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 175; Dec Dig. § 103.*]
(Syllabus by the Court.)
Error to Circuit Court, Kanawha County.
Action by Charles Vickers, by his next friend, against the Kanawha & West Virginia Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed and new trial awarded.
Wertz & Van Fleet, for plaintiff in error.
Chilton, MacCorkle & Chilton, for defendant in error.
This case is a companion of Newhouse v. Kanawha & W. Va. R. Co., 62 W. Va. 562, 59 S. E. 1071. In that case, as in this, the court below sustained the motion of the defendant to strike out the plaintiff's evidence and direct a verdict for the defendant. We reversed the judgment below in the Newhouse Case, being of opinion that the evidence made such a prima facie case of negligence as entitled the plaintiff to have the same submitted to the jury. Since that decision, but pending a petition here for a rehearing, this case was tried and determined in favor of the defendant, as stated.
The plaintiff, an infant, was employed by defendant, along with Newhouse and others as a day laborer in building a railroad from Charleston by the way of Elk river and Bluecreek to a point on said creek. The road was not completed, but some trains were being run while the work of construction was still going on. The plaintiff by arrangement with the company was with the other laborers, carried to and from his places of employment along the road, and to and from his boarding place, on the work train of the defendant, consisting of an engine and a flat car. At a point near the defendant's track on Blue creek was a stone quarry, and where, by permission of the company, a derrick used in loading stone had been erected by one Tully, an independent contractor. The derrick was supported by four guy ropes, two of which were stretched across and made fast on the opposite side of defendant's track. May 23, 1906, the day of the accident, about 3 o'clock p. m., the work train, on which plaintiff was a passenger, on its outward trip passed safely under these guy ropes, as it had been doing daily for two or three months, being delayed at that point, not, as shown in the Newhouse Case, by the sagging of the guy ropes over the track, but by the act of some workmen employed ' there in dragging a rope across the track. On the return trip that day, however, between 5 and 6 o'clock in the evening, In attempting to pass under the ropes the cab of the engine caught the first of the ropes, dragging the other down and causing it to sweep across the flat car being pushed by the engine, and to drag the plaintiff off between the car and the engine, the engine passing over both his legs, mashing them, and resulting in their amputation, one at the knee joint, the other between the knee and ankle. It was proven at the trial that on the day of the injury the derrick was being dismantled; that a car for removing it had been set there for that purpose, and that some 30 minutes before the work train reached that point on its return trip these guy ropes across the track had been loosened by some men employed by Tully. the contractor, causing them to sag, resulting in the injury to plaintiff, and for which this action is brought.
It did not appear in the Newhouse Case that the derrick In question belonged to Tully, and had been employed by him as an independent contractor, and, as now appears in this case, that the accident resulting in the injuries to plaintiff was directly traceable to the negligence of Tully, or his employes, in loosening the guy ropes and allowing them to sag and to remain in that condition, as stated, when encountered by the work train. The general rule relating to master and servant, requiring evidence of some affirmative acts of negligence of the master, either of omission or commission, pertaining to his duties to his servant in order to render him liable to the servant for injuries sustained, was thought, in the New-house Case, to be satisfied by the evidence tending to show the sagging of the guy ropes, and notice thereof to the defendant on the outward trip, which, until explained by defendant consistent with the exercise of due care, entitled the plaintiff to a submission of his case to the jury. In the Newhouse Case the defendant relied on the want of evidence to show negligence of the defendant. In the present case negligence is not only shown, but admitted. But the defendant.relies on the proposition that, the negligence being primarily that of Tully, an independent contractor, or his employes, its whole duty to the plaintiff to provide him with a reasonably safe place to work was discharged when it employed Tully, a competent person, and permitted him to suspend the guy ropes in question over its track, and, as counsel for defendant say in their brief, we are brought face to face with the question, What is the duty of a railroad company under the circumstances of this case?
The general rule with respect to the liability of the owner for the acts of an independent contractor, as stated in 1 Thomp. on Neg. § 621, is "that one who has contracted with a competent and fit person exercising an Independent employment to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third persons to unusual danger, according to the contractor's own methods, and without being subject to control except as to results of his work, and subject to other qualifications hereafter stated, will not be answerable for the wrongs of such contractor, his subcontractors, or his servants, committed in the prosecution of such work." The general rule, stated in the Newhouse Case, is that one of the nonassignable duties of a master is to provide his servants a reasonably safe place to work, this rule, with respect to railroads, extending to the entire track over which the servant is required to pass in the discharge of his duties. And with respect to railroads this is a positive duty, which, although intrusted to an independent contractor, will not absolve it from liability for nonperformance. 1 Thomp. on Neg. §§ 646-665; McCafferty v. Spuyten Duy-vile, etc., R. Co., 61 N. Y. 178, 19 Am. Rep. 267; Ryder v. Thomas, 13 Hun (N. Y.) 293. But let us inquire whether...
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