If the employer contracts for a nuisance or other unlawful

act, he remains liable to any person injured in consequence of

the performance of the contract.^ Perhaps the exception is

even broader than this. In one case it is stated, by way of

dictum, to be this : " If a contractor faithfully performs his

contract, and a third person is injured by the contractor, in

the course of its due performance, or by its result, the em-

ployer is liable, for he causes the precise act to be done which

161 ; Lawrence v. Shipman, 39 Conn. 586 ; Engel v. Eureka Club, 137

N. Y. 100, 101 ; Berg v. Parsons, 156 N. Y. 109, 115.

1 Berg V. Parsons, 90 Hun (N. Y.), 267 (overruled in 156 N. Y. 109,

three judges dissenting); Norwalk Gaslight Co. i;..Norwalk, 63 Conn.

495, 528-529; Brannock v. Elmore, 114 Mo. 55; Sebeck v. Plattdeutsche

Volkfest Verein, 64 N. J. L. 624.

2 Lawrence v. Shipman, 39 Conn. 586.

8 Berg V. Parsons, 156 N. Y. 109 ; Schip v. Pabst Brewing Co., 64

Minn. 22.

* Ibid.

^ Dissenting opinion in Berg v. Parsons, 156 N. Y. 109.

В« Ellis V. Sheffield Gas Consumers Co., 2 E. &B. 767; Deford v. State,

30 Md. 179; Ketcham v. Newman, 141 N. Y. 205.

276 WHO IS A SERVANT?

occasions the injury." ^ Whichever rule more correctly states

the exception, it is at least true that where the contract calls

for the doing of an act that is itself wrongful, the employer

remains liable for all the consequences, practically as a joint

tort-feasor with the contractor.

В§ 221. Exceptions : (3) contracting for unsafe result.

If the employer contracts for improper materials or an

unsafe plan, or generally an unsafe result, he remains liable

for damages occasioned thereby although the work is done by

an independent contractor.^ " The owner cannot dictate that

his building be constructed of improper materials or upon an

unsafe plan, and escape liability for injuries caused thereby

because he made a contract with a third person to build it."^

В§ 222. Exceptions : (4) statutory liability to conduct work effi-

ciently.

If the employer is under an obligation of positive law to do

a particular thing, or to observe particular safeguards, he

cannot relieve himself of this liability by putting the work

into the hands of an independent contractor.^ Thus, if he is

empowered by statute to construct a bridge, but to have it

open for navigation within a specified time, he is not relieved

of liability for obstructing navigation because the independent

contractor failed to observe the terms of the contract.^ If a

permit to place building material in the street is coupled with

a condition that it be lighted and guarded, the lot owner is

liable for the failure of a contractor to light and guard

material deposited there.^

The rule under this head has been extended to cases where

a railroad is by statute authorized to construct its road across

* Lawrence v. Shipman, 39 Conn. 58G.

2 Gorliam r. Gross, 125 Mass. 232.

8 Meier c. Morgan, 82 Wis. 289.

* Hole V. Sittingbourne R. Co., 6 II. & N. 488; 30 L. J. Ex. 81;

Reuben v. Swigart, 7 Oh. Dec. 638 ; Downey v. Low, 22 N. Y. App. Div.

460.

^ Hole V. R. Co., supra.

* Reuben v. Swigart, supra.

INDEPENDENT CONTRACTORS. 277

a highway, and by the negligence of an independent con-

tractor the highway is rendered unsafe, even though the

statute does not expressly require the railroad to observe

particular safeguards. ^

В§ 223. Exceptions : (5) contract liability to conduct w^ork safely.

If the employer by express contract has agreed to do an

act efficiently and safely, he cannot, by sub-letting the work

to an independent contractor, relieve himself from liability

under his express contract. Thus where a company under-

took to lay water-pipes in a city, and agreed with the city to

protect all persons from damages and to be responsible for

damages to all persons, and afterward sub-let the work to a

contractor, who in using a steam-drill injured a traveller, it

was held that the company was liable.^ But where a license

was given by a city to a landowner to construct a sewer on

condition that the work be guarded and lighted, and that the

licensee should be answerable to any person injured by the

failure so to do, it was held that the licensee was not

liable for such neglect on the part of an independent

contractor.^

В§ 224. Exceptions: (6) extra-hazardous work.

If the work to be executed is extra-hazardous, and such

that in the natural course of things injurious consequences

are likely to ensue, unless suitable means are adopted to pre-

vent such consequences, the employer is liable unless he uses

due care in the adoption of such means.^

This exception to the general rule has not met with univer-

sal favor. It has been applied in the cases just cited to the

excavation of lands endangering the support of adjoining

1 Deming v. Terminal Ry. Co., 49 N. Y. App. Div. 493.

2 Water Company p. Ware, 16 Wall. 566.

8 Blake v. Ferris, 5 N. Y. 48.

4 Bower v. Peate, L. R. 1 Q. B. D. 321 ; 4.5 L. J. Q. B. 446 ; Black v.

Christchurch Finance Co., 1894, A. C. 48; Thompson t'. Lowell, &c. Ry.,

170 Mass. 577 ; Cameron v. Oberlin, 19 Ind. App. 142 ; Norwalk Gaslight

Co. V. Norwalk, 63 Conn. 495; Bonaparte y. Wiseman, 89 Md. 12; Cov-

ington, &c. Bridge Co. v. Steinbrock, 61 Oh. St. 215; Wetherbee v. Par-

tridge, 175 Mass. 185.

278 WHO IS a servant?

property, to an exhibition of marksmanship, to the clearing

of land by fire, to the removal of dangerous walls, and to

blasting.

It has been rejected in the case of a contract for blasting,^

for an exhibition of balloon ascension,^ and for the setting

of fires.^

В§ 225. Exceptions : (7) safety of premises.

If the owner of property contracts for work to be done

upon it, he is, as to invitees, bound to keep the premises in a

safe condition and cannot excuse himself on the ground that

the work is under the exclusive control of a contractor.* The

rule extends to the protection of pedestrians in a public way

injured by inadvertently falling into unguarded excavations

adjacent to the sidewalk,^ and to the protection of users of

a highway against defective overhanging structures.^

The early case of Bush v. Steinman' carried this doctrine to

the extreme point of holding that where work is done on an

owner's premises he ought to reserve control over the methods,

and if he does not, is liable for all results. The case has been

unfavorably commented upon in England and America, and is

probably not now^ law.^

В§ 226. Exceptions : (8) interference by employer.

If the employer reserves the right to interfere with the

method of work, and to direct and control, the em])loyer is

substantially a master and remains liable under the usual

doctrines applicable to master and servant.^ If the employer,

1 Berg V. Parsons, 156 N. Y. 109. See M'Xamee i-. Hunt, 87 Fed. R.

298.

2 Smith V. Benick, 87 Md. GIO.

8 St. Louis, &c. R. V. Yonley, 53 Ark. 503.

* Curtis V. Kiley, 153 INIass. 123 ; Coughtry v. Globe Woolen Co., 56

N. Y. 124.

5 Wiggin V. St. Louis, 135 Mo. .558.

В« Tarry i;. Ashton, L. R. 1 Q. B. D. 311.

' 1 B. & P. 401.

8 Reedie v. London & N. W. Ry., 4 Exch. 244, 256; Pollock on

Torts (5th ed.), p. 76, note h : Blake v. Ferris, 5 N. Y. 48, 62-64. See

also Strauss v. City of Louisville (Ky.), 55 S. W. 1075.

9 Linnehan v. Rollins, 137 iMass. 123.

INDEPENDENT CONTRACTORS. 279

having reserved no right to interfere, does in fact interfere,

and the injury complained of is the natural result of such in-

terference, the employer is liable.^ In the one case he is still

the master and liable as such for the negligence of his ser-

vants ; in the other case he is himself the actor and liable for

the natural and probable results of his own acts.

В§ 227. Resumption of control by owner.

After the work of the contractor is completed and the

owner resumes control of his property he is, of course, liable

for its safe condition. It is sometimes a nice question

whether the owner has resumed control, but this is essen-

tially a question of fact and not of law.^

1 Lawrence i\ Shipman, 39 Conn. 586, 590; Berg r. Parsons, 156 N.Y.