Wray v. Evans , 1876 Pa. LEXIS 37 ( 1876 )

Mr. Justice Gordon

delivered the opinion of the court,

In the case of Painter v. The Mayor, &c., of the City of Pitts-burg, 10 Wright 213 (Strong, J., delivering the opinion of the court), it was held that it is the settled law, both in England and in this country, as ascertained by the decided preponderance of authorities,, that persons not personally interfering with or -directing the progress of a work, but contracting with third parties to do it, are not responsible for a wrongful act done, or for negligence in the performance of the contract, if the act agreed to be done be lawful.

Hence, it was held, that the city was not responsible for an injury occasioned by the negligence of those who contracted with it to do certain work, or of their agents or servants, and that the reniedy for such injury was against the contractors alonei ' The conclusions drawn from all the more recent authorities, • including the above, may be formulated thus: the immediate employer of the agent or servant, who causes the injury, is alone responsible for such injury; to him alone the rule of respondeat superior applies, and there cannot be two superiors severally responsible.

Let us now recur to the facts of this case. By agreement between the Pittsburg Gas Co. and James T. Wray, the latter undertook to dig a trench, in which to lay the gas pipes of said company, in Gas street and Second avenue, from the works of said company to the gas holder, in the Fourteenth ward of the city of Pittsburg. This work was to be done under the supervision of the company’s engineer. It was also part of the contract, that should Wray, at any time, neglect or refuse to supply a sufficiency of material or workmen to execute the work properly, the company might furnish the same, after giving three days’ notice, and charge the same over to Wray.

By a sub-contract, similar in its terms, except that if the work was not done to the satisfaction of the gas company’s engineer, t.he contract was to be forfeited on two days’ notice, Wray passed the job to Michael Davis. Each of the contracts contained a covenant that the contractor should be responsible for all losses, damages, fines and recoveries that might happen or be had by reason of the carrying on of said work arising through negligence, mistake or otherwise.

In execution of his contract with Wray, Davis proceeded to dig the trench along Second avenue, into which, on the night of October 9th 1873, the plaintiff fell and broke his leg. The evidence shows that Davis employed and supervised the hands who did this work, and that Wray had no control whatever over them. From the above statement, it is patent that Davis having contracted in good faith with Wray, to do the work, he was neither the servant nor agent of Wray, and hence not subject to his authority.

It follows that the doctrine of respondeat superior has no applicability to the defendant in this case. As long as Davis continued to progress with the work, in a manner satisfactory to the engineer of the gas company, Wray had no more power over the work than an entire stranger. Had he volunteered advice as to the care necessary to preserve the public from danger, it would have been to no purpose, as he had no power to enforce it. The matter was out of his hands; he could not assume the control of the work until the sub-contract should be forfeited by hon-performance.

Thus, not only authority, but reason forbids that the defendant should be made responsible for the negligence of one over whom he had no power, and who was not subject to his direction.

Again, beyond controversy, Davis was, in this case, liable for the negligence of his employees in the prosecution of the work; hence, to charge this negligence over to Wray is to make tw.o superiors severally liable for the same injury or misfeasance. This, however, violates the rule already referred to, which negatives such a proposition.

We conclude, therefore, that the court erred in refusing to affirm the plaintiff’s sixth point, and for this reason the judgment is reversed and a venire facias de novo is awarded.