Toledo Brewing & Malting Co. v. Bosch , 13 Ohio F. Dec. 258 ( 1900 )

CLARK, District Judge,

after stating the case as above, delivered the opinion of the court.

It was suggested, rather than pressed in argument, that the question of negligence should have been submitted to the jury, conceding that the court below was right in the view taken of the law applicable to the case. This question of negligence, of course, involved the point whether the displacement of the beam in the work of repairs on the roof was so probable or necessary that it should have been anticipated, and the danger guarded against by the master by suitable precautions. The facts were substantially undisputed, and the conclusion that there was a negligent omission of duty was one at which all reasonable men must have arrived, provided the master was responsible to the servant for the defect in the hoisting apparatus •caused by displacement of the beam. Under these circumstances, the question of liability was one of law, and the court might properly instruct the jury that the right to recover was established, and .submit the case to the jury to determine the measure of damages. This was what the court- did. Railway Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, 38 L. Ed. 434; Scholtz v. Insurance Co. (C. C. A.) 100 Fed. 573.

The controlling question, then, is whether, in view of the ■ contract between plaintiff in error and Schillinger Bros., the doctrine in relation to employer and independent contractor is applicable to the facts of the case.

The principle — respondeat superior — upon which the master is held responsible for the unlawful and negligent acts of a servant done in the course of the servant’s employment does not, of course, extend to make an employer responsible for the acts of a person not in his service, with whom he has contracted to do the work in the course of which the default occurred. The general rule is well settled, and not controverted, that an employer is not liable for an injury resulting from the negligence of an independent contractor, or his servants, such as negligence in the mode of doing a work in itself lawful. Pol. Torts (5th Eng. Ed.) 75; Casement v. Brown, 148 U. S. 615, 13 Sup. Ct. 672, 37 L. Ed. 582; 1 Shear. & R. Neg. (5th Ed.) § 168. There are a number of established important exceptions to the general rule, but we are not now concerned with these generally. One exception to the general rule of exemption from liability in such cases is where the law imposes on the employer the duty to1 keep the subject of the work in a safe condition. A municipal corporation, for example, being under a duty imposed by law to keep the streets in a safe condition for passage, is liable for injuries in consequence of an obstruction or dangerous excavation caused in the performance of a work, and left exposed, although the work is done by an independent contractor. Mayor, etc., v. McCary, 84 Ala. 469, 4 South. 630; City of Chicago v. Robbins, 2 Black, 418, 17 L. Ed. 298; Hughes v. Percival (1883) 8 App. Cas. 443; Bower v. Peate, 1 Q. B. Div. 321; Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485; Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421. See, also, Wood, Mast. & Serv. § 316; 1 Shear. & R. Neg. § 176.

These and other like cases proceed upon the principle that a positive personal duty cannot be delegated to an agent or contractor, and that the obligation in such cases is to do the thing required, and not merely to employ another to do it, and, to bring a case within the rule, it is sufficient if the duty is one to the public or a third person, and imposed by law or by statute. Bridge Co. v. Steinbrook (Ohio Sup.) 55 N. E. 618; Water Co. v. Ware, 16 Wall. 566, 21 L. Ed. 485; Wood, Mast. & Serv. § 616; 1 Shear. & R. Neg. §§ 14, 176.

This subject was much considered and the previous cases reviewed by the English court of appeal in Hardaker v. District Council [1896] 1 Q. B. 335, in which. Bindley, L. J., after stating that the city council were not bound in point of law to do the particular work by servants of their own, but were left free to employ contractors to do the work for them, said:

“Bui: the council cannot, by employing a contractor, get rid of their own duty to other people, whatever that duty may be. If the contractor performs their duty for them, it is performed by them through him, and they are not responsible for anything more. They are not responsible for his negligence in other respects, as they would be if he were their servant Such negligence is sometimes called ‘casual’ or ‘collateral’ negligence. If, on the other hand, their contractor fails to do what it is their duty to do or get done, their duty is not performed, and they are responsible accordingly. ‘The ratio decidendi of these cases,’ said Smith, L. X, in the same case, ‘is that, as the duty was imposed upon the defendant by law, he could not escape liability by delegating the performance of the duty to a contractor; for the obligation was imposed upon the defendant to take the necessary precaution to insure that the duty • should he performed.’ ”

In Bridge Co. v. Steinbrook tlie supreme court of Qbio declared that:

“The weight of reason and authority is to the effect that, where a party is under a duty to the public or third person to see that work he is about to do, or have done, is carefully performed so as to avoid injury to others, he cannot, by letting it to a contractor, avoid his liability, in case it is negligently done to tlie injury of another. * * * The duty need not be imposed by statute, though such is frequently the case. If it be a duty imposed by law, the principle is the same as if required by statute. Cockburn, C. J., in Bower v. Peate, 1 Q. B. Div., at page 328. It arises at law in all cases where more or less danger to others is necessarily incident to the performance of the work let to contract. It is the danger to others incident to the performance of the work let to contract that raises the duty, and which the employer cannot shift from himself to another, so as to avoid liability, should injury result to another from negligence in doing the work.”

The opinion in this case is instructive, and refers to the leading cases in this country and in England .upon the subject. In Water Co. v. Ware, supra, (he liability was based upon an obligation imposed by contract. And this doctrine, in the light of the reasons on which it rests, is equally and cogently applicable to that duty resting on the master to exercise reasonable care and caution to secure the safety of tlie servant. While the relation between master and servant is contractual, the obligation of the master in respect of the safety of the servant is one implied or imported into the contract by law, and is not an express term or provision of the contract. Accordingly, in Railroad Co. v. Herbert, 116 U. S. 647, 6 Sup. Ct. 593, 29 L. Ed. 758, Mr. Justice Field, speaking for the supreme court of the United States, said:

“It is equally well settled, however that it is the duty of the employer to Select and retain servants who are fitted and competent for the service, and to furnish sufficient and safe materials, machinery, or other means by which it is to be performed, and to keep them in repair and order. This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants can be transferred, so as to exonerate him from such liability. The servant does not undertake to incur the risks arising from the want of sufficient and skillful co-laborers, or from defective machinery or other instruments with which he is to work. His contract implies that in regard to these matters his employer will make adequate provision that no danger shall ensue to him.” - - ....

And in the subsequent case ,of Railroad Co. v. Baugh, 149 U. S. 368, 386, 13 Sup. Ct. 921, 37 L. Ed. 780, Mr. Justice Brewer, speaking for the court, declared and defined this duty in language as follows:

“Again, a master employing a servant .impliedly engages with him that the place in which he is to work, and the tools or machinery with which he is to work, or by which he is to be surrounded, shall be reasonably safe. It is the master who is to provide the place and the tools and the machinery, and when he employs one to enter into his service he impliedly says to him that there is no other danger in the place, the tools, and the machinery than such as is obvious and necessary. Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits the master who provides the place, the tools, and the machinery owes a positive duty to his employe in respect thereto. That positive duty does not go to the extent of a guaranty of safety, but it does require that reasonable precautions be taken to secure safety, and it matters not to the employe by whom that safety is secured or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty, and if the master, instead of discharging it himself, sees fit to have it attended to by others, that does not change the measure of obligation to the employs, or the latter’s right to insist that reasonable precaution shall be taken to secure safety in these respects.”

In Baird v. Reilly, 35 C. C. A. 78, 92 Fed. 884, the circuit court of appeals for the Second circuit, discussing this duty of the master, said:

“He cannot escape responsibility by delegating his duty in this behalf to another, because it is his implied contract with the employe that he will see to it that the working place is reasonably safe, in view of the character of the work to be performed, and this obligation is not satisfied by devolving it upon a subordinate.”

In The Magdaline (D. C.) 91 Fed. 798, the facts were that the vessel was undergoing general repairs, and the libelant was a servant employed by the ship to do work in the hold. McCaldin Bros, were engaged in laying a new main deck under contract, and the Ross Iron Works in doing certain ironwork. The servant was at work in the hold in the forward part of the ship when a piece of wood fell upon his head, producing the injury which was the subject of the libel. The libelant’s contention was that the wood was caused to fall by the act of certain of the vessel’s crew, while the respondent claimed that the wood fell from the main deck, where the floor was being relaid in constructing the new deck. The facts which the court treated as established were: (1) That the libelant was injured by the wood falling between one or two openings in the between-decks, it not being material which; (2) that the wood fell by reason of the negligence of some of the crew, or of the carpenters at work on the main deck; and (3) that the libelant was not furnished with a safe place to work. Judge Thomas, first pointing out that while the vessel was undergoing repairs pieces of wood had previously fallen into the hold, and that the work undertaken was likely to lead to this, said:

“In sucb cases, it was the duty of the master, when placing servants in the hold of the vessel, to use due care to guard them against injury arising from the conditions existing above. A master may not place his servant at a work made dangerous by the nature of the work of other servants, or persons performing work under contract, without due effort to furnish adequate protection, and, when injury arises, escape upon tin, plea that, but for the negligence of a co-servant or third person employed on the premises, the injury would not have happened. A servant may expect that his master will not surround him with dangerous agencies, or expose him to their operation, whether they are in charge of the master’s servants or of any independent contractor. The rule is well illustrated, if the block was dropped by one of the crew, by Ford v. Lyons, 41 Hun, 512, which, in all its fads, is similar to the case at bar. See, also, Stephens v. Knitting Co., 69 Hun, 375, 23 N. Y. Supp. 656, and Daley v. Schaaf, 28 Hun, 314, where, however, an element existed not now present. If the block was dropped by the servants of an independent contractor, the case is illustrated by Burnes v. Railroad Co., 129 Mo. 41, 56, 31 S. W. 347, and Rook v. Concentrating Works, 76 Hun, 54, 27 N. Y. Supp. 623.”

The doctrine thus announced was fully recognized and declared in the late cases of Trainor v. Railroad Co., 137 Pa. St. 148, 160, 20 Atl. 632, and Burnes v. Railroad Co., 129 Mo. 41, 56, 31 S. W. 350. In the last case cited, the supreme court of Missouri, speaking in relation to the duty of the master, said:

“The duly of keeping its road, track, and yards in a reasonably safe condition is a personal duty which the master owes the servant, and it cannot delegate this duty to any servant, high or low, nor can it avoid liability by lotting out a part of its duties as a common carrier to independent contractors. While, for many purposes, this relation of independent contractor will be recognized, it cannot be sustained to shield the master from those positive personal obligations cast upon him by his relation to his servant. Schaub v. Railroad Co., 106 Mo. 74, 16 S. W. 924; Lewis v. Railroad Co., 59 Mo. 495; Siela v. Railroad Co., 82 Mo. 435.”

In view of these cases, it must be regarded as established by the weight of authority, supported by reason, that the master is not relieved from the positive personal duty which he is under to the servant by letting work to a contractor, and that he does not avoid liability in case the work is negligently done, and the servant thereby injured in consequence of exposure to a dangerous place or defect against which, in the discharge of the master’s duty, he should have been protected. It follows, therefore, that the learned circuit judge rightly ruled the question on which the case turns, and in regard thereto correctly instructed the jury. Judgment affirmed.