A fire kindled on the right of way spread to adjacent premises.*

A person on a street was struck by a heavy object which a workman let fall from a viaduct.5

A traveler was thrown from his horse when it stumbled over one of the rails deposited along a street on

plicable to

railroad corporations alone. Where a right is possessed by a natural person, and a duty is attached to the exercise of the right, such duty must be performed; such natural person cannot relieve himself from liability through the intervention of an independent contractor. So, on the other hand, where the law exempts a natural person, as employer, from liability for the wrongful act of his contractor, it will also, under like circumstances, exempt a corporation, as employer, from liability for the wrongful act of its contractor."

In Stephenville, N. & S. T. R. Co. v. Couch (1909) 56 Tex. Civ. App. 336, 121 S. W. 189, where the trial judge had laid it down that the negligence of the contractor was imputable to the defendant company, for the reason that it could not absolve itself from its duties to the public in building a railway under its charter, the court of appeal held that the principle thus relied upon was not applicable to the facts, because the contractor "was not exercising, or undertaking to exercise, any franchise granted to the company." The same position was taken in Stephenville, N. & S. T. R. Co. v. Carter (1909) Tex. Civ. App. 121 S. W. 192.

* In Rogers v. Florence R. Co. (1889) 31 S. C. 378, 9 S. E. 1059, the court, in discussing the theory upon which the plaintiff relied, viz., that "when the employer, as a corporation, is charged with certain obligations, reciprocal to the privileges and franchise granted, it cannot shift the responsibility from itself by employing a contractor to do the work for it," said: "This is very general, and we do not know that we fully comprehend it. If it means that a railroad corporation, on account of the large powers generally granted to them,-eminent domain, etc.,-cannot be allowed to construct their track, etc., through an independent contractor, but must do such work through their own servants and employees, we have only to

which a railway was being constructed.

A member of the public, while traveling on a construction train, was injured.7

A child was injured by a turntable used in the operation of a railroad which was still in the possession of the contractor.8

say that we have found no authority for such a position. If it means that where certain obligations exist, growing out of the privileges and franchises granted to the corporation, which would be inconsistent with the right of the company to employ an independent contractor to meet said obligations, from public policy or otherwise, then the principle may be conceded; but the propriety of its application must be shown. No obligation of the defendant has been pointed out here inconsistent with having its road graded by an independent contractor."

5 Burmeister v. New York Elev. R. Co. (1881) 15 Jones & S. (N. Y.) 264. The rule that, "where a duty is imposed upon a corporation, it cannot by any compact relieve itself from that duty and its liability thereunder," was declared to have "no application to the building of a railroad." The court observed that the duty did not rest upon the defendant to build the New York elevated railroad in per

son.

6 Fulton County Street R. Co. v. McConnell (1891) 87 Ga. 756, 13 S. E. 828. The ratio decidendi was that the duty of constructing the road was not imposed on the company by its charter.

7 Cunningham v. International R. Co. (1879) 51 Tex. 503, 32 Am. Rep. 632 (claimant had been taken on the train in contravention of a prohibitory rule made by the company). For the ratio decidendi, see text at the commencement of this section.

8 Kansas C. R. Co. v. Fitzsimmons (1877) 18 Kan. 34. There the court disapproved an instruction to the effect that, "if the jury find that, at the time of the injuries, the turntable and the road were in the possession of and operated by the corporation constructing and equipping the same, for the purposes of construction only, the railroad company was not liable therefor; but if the said constructing corporation had possession of the

road and was operating it for general purposes, the railroad company was not relieved from liability for the injuries." The following passage in the opinion indicates the grounds upon which this conclusion was based: "The better authority is that when a railroad is being constructed, and is in the exclusive possession of and operated by the contractor for its construction, and the railroad company, at the time of the injuries being committed thereon, has no control thereof, such company is not liable for the damages resulting from the injuries committed by the contractor in operating the road. . . . This general doctrine the court below substantially recognized in its charge to the jury, but made a distinction as to the liability of the railway company in the use for which the contractor operated the road. The liability of the railway company is attempted to be made to depend on the character of the use of the road, not the character or manner of the possession of the same by the contractor. The instruction

thus given was too broad and not sufficiently limited to be applicable to the case at bar. The real defense to the action was that the railroad was being constructed by the Washington Improvement Company, was in its possession, and under its control, and operated by it; that it had not yet been turned over to the railway company, and that the railway company had nothing to do with its operation, or construction, or the employment of its hands. If the improvement company held possession of the road, and engaged in general traffic against the objections of the railway company, under the charge, the railway company would be liable. If the contracting company had failed to properly equip the road, or had built defective bridges, and the railway company refused to accept the same, this charge of the court would hold the railway company liable for all damages caused thereby, if, in defiance of the railway company's orders and authority, the contracting company carried freight and passengers over the road.

The charge does not base this liability upon the improvement company being the lessee of the road, nor upon any contract by which the road is to be operated with the consent or for the benefit of the railway company. Nor

can it be claimed from the instructions that the railway company had made any contract in violation of its charter, or to avoid its responsibility. It is conceded that the improvement company had authority, under its incorporation, to construct and equip the road; and to hold that, while in the possession of the road and its appurtenances, the railway company should be responsible for its wrongful acts or omissions, because said improvement company ran trains and carried passengers and freight, would be deciding the law contrary to that given in the first part of the charge, and affirming in its broadest sense the principle that the employer is responsible for all acts and omissions of the contractor, the same as those of a servant. Such is not the law.

The fact that the improvement company had no authority to operate a railroad in Kansas, as claimed by counsel for defendant in error, does not, on the facts presented, change the law in this case. If the improvement company, in carrying passengers and freight, was violating its own charter, as well as committing acts not authorized by the contract existing between it and the railway corporation, the reasons are still stronger in favor of holding the railway company not liable for such unlawful acts." Brewer, J. (afterwards Associate Justice of the Supreme Court of the United States), delivered a dissenting judgment in which he said: "All I understand the instruction to say is that a railway corporation receiving a franchise from this state, with the high and peculiar privileges attaching to corporations, incorporated to discharge a public duty as well as to subserve a private benefit, cannot shift upon others the duty and responsibility of a personal exercise of the corporate powers granted, except in the cases and under the conditions specified in the statute. It may contract for the construction of its road. It may lease the road, when constructed, to another corporation whose road with its own will make a continuous line. Laws 1870, chap. 92, §§ 2 & 3. But it cannot avoid responsibility by simply permitting another party, neither contractor nor lessee, to assume charge of the immediate running of the road."

in a construction train supplied by the company.9

A servant of the contractor was injured by reason of defects in machinery belonging to his own employer.10

A servant of a contractor was injured as a result of handling lumber

9 Rome & D. R. Co. v. Chasteen (1889) 88 Ala. 591, 7 So. 94 (accident caused by negligence of engineer). It was held error to give, at the instance of the plaintiff, a charge which grounded the company's responsibility upon the isolated fact that one C., the party whose servants caused the injury, was transporting freight and passengers for a reward between certain points on the line. The court remarked that under such a charge the jury was authorized to hold the company liable, though C. might have been operating the road without defendant's permission, and against its objection; or though he might have been an independent contractor, having possession and control, and operating the finished portion in aid of the further construction of the road under a contract with the company. The reasoning of the majority of the court in the Fitzsimmons Case, note 8, supra, was approved.

10 In Lee v. Atlanta, B. & A. R. Co. (1911) 9 Ga. App. 752, 72 S. E. 165, the plaintiff, while working on a construction train supplied to his employer, was injured as a result of the bursting of a pipe through which steam was conveyed from the locomotive to a stationary engine operated for the purpose of hauling the plow by which the earth required for making an embankment was scraped off the cars.

The decision denying the right of action was founded on the general provision of the Code of 1910 (§ 4414), which embodies the doctrine that an employer is not liable for the torts of an independent contractor. But the following remarks of the court are pertinent in this present connection: "Relatively to [the plaintiff] there could be no implication of such duty as would arise in favor of a passenger, or of other persons generally, injured because of the railroad company's permitting a third person to use its tracks or other special franchises. No duty is imposed upon a railroad company, by its charter or otherwise, to build by any particular means its roadbeds, and there is nothing in our law which prohibits it

which had been treated with a poisonous mixture for the purpose of retarding its decay."1

A servant of a subcontractor was injured by the fall of an overhanging layer of clay while he was shoveling gravel into a car.12

from committing such work to the hands of an independent contractor.

Nor can it make any difference that the railroad company might have furnished some of the materials for the construction of its roadbed, or hired to the construction company its locomotive for the purpose of pulling its cars."

11 West v. St. Louis, W. & T. H. R. Co. (1872) 63 Ill. 545. Certain earlier Illinois cases were distinguished on the ground that in them the wrong for which the action was brought was committed in the performance of acts which were performed by virtue of the authority of the company, derived from its charter, and could have been performed in no other way. The grounds upon which this case was distinguished from certain others in which the liability of the company was affirmed are stated in the passage quoted in § 1, note 1, supra. In Boyd v. Chicago & N. W. R. Co. (Ill.) (see next note), the effect of this case was said to be this-"that the railway company, in letting the contract, did not commit the execution of any of its franchises to the contractors, and that the contractors, in hiring the plaintiff, were only exercising their private and natural right, and not any special power derived from the charter of the corporation."

12 Boyd v. Chicago & N. W. R. Co. (1905) 217 Ill. 332, 108 Am. St. Rep. 253, 75 N. E. 496, affirming (1905) 118 Ill. App. 433. It was conceded by the counsel of both parties that the general principle with relation to which the right of action was to be determined was this: That "a railway corporation will be held liable for the wrongful act of a contractor, while exercising, with the assent of the corporation, some chartered power or privilege of the corporation, which he could not have exercised independently of its charter; but it will not be liable for the wrongful act of an independent contractor not exercising any special power derived from the charter." The grounds upon which the court distinguished various cases in which the defendants were held liable

4. Same doctrine further discussed. In order to complete the collection of cases in the preceding section, it will be advisable to refer to those, also, in which the right of action was denied, without any reference to, or discussion of, the theory of a non

are indicated in the following extract from the opinion: "Where a corporation was authorized by its charter to enter upon the premises of individuals and take therefrom materials for the construction of its works, and provision was made for assessing the value of the materials taken and damages occasioned by reason of the taking, and judgment was to be rendered against the corporation for such value and damages, it was held liable for the act of a contractor in taking such materials. Lesher v. Wabash Nav. Co. (1852) 14 Ill. 85, 56 Am. Dec. 494; Hinde v. Wabash Nav. Co. (1853) 15 III. 72. Such an entry could only be made by virtue of the charter, and the privileges and liabilities of the charter attached to the corporation. Again, where acts of incorporation conferred the right to enter upon premises and construct a railroad track over them, and the work was let to contractors, who entered upon land and took down the fences, and left them down, resulting in the killing of stock or other damages, the corporations were liable. Chicago, St. P. & F. du L. R. Co. v. McCarthy (1858) 20 III. 385, 71 Am. Dec. 285; Illinois C. R. Co. v. Finnigan (1859) 21 Ill. 646; Chicago & R. I. R. Co. v. Whipple (1859) 22 Ill. 105. In such cases the contractors were exercising chartered powers in entering upon the lands, and without the charters would have had no right to do so. A railroad corporation is liable for the performance of its duty to keep its road fenced, and can never relieve itself of the duty by committing the work to a contractor. So, also, a railroad company is liable for the trespasses of contractors engaged in constructing its road, in entering upon land without right and digging a ditch and making embankments. Rockford, R. I. & St. L. R. Co. v. Wells (1872) 66 Ill. 321; Cairo & St. L. R. Co. v. Woosley (1877) 85 III. 370." [For another case (not cited by the court) in which a company was held to be liable for the killing of cattle on an unfenced track by a construction train, see Rockford, R. I. & St. L. R. Co. v. Heflin (1872)

delegable duty. Cases of the latter type may be regarded as affording, by an implication of a somewhat weak and inconclusive character, some support for the proposition that the defendants were not subject to such a duty with respect to the mat65 III. 366.] Two cases relied upon by the claimant, Chicago Economic Fuel Gas Co. v. Myers (1877) 168 III. 139, 48 N. E. 66, and North Chicago Street R. Co. v. Dudgeon (1900) 184 Ill. 477, 56 N. E. 796, were distinguished, as having proceeded upon the ground that the work in question was being done in the public streets of a city, and that "in such a case there is an implied condition that the grantee of the license or permission will see to it that those using the streets are protected from unnecessary danger on account of the work. In such a case a duty is assumed by the corporation, and it can never relieve itself from the performance of the duty by committing the work to a contractor." It is submitted that this phraseology cannot reasonably be regarded as having reference to the particular duty imposed upon persons who perform work on highways which is dangerous to travelers. That duty is predicable, irrespective of whether the work is performed by a corporation or an individual; whereas the passage above quoted relates specifically to corporations only. (It is noteworthy that, although the West Case (Ill.) supra, was cited in the Myers Case, as a precedent for the doctrine concerning the obligations incident to an exercise of corporate franchises, no attempt was made to deal with the difficulty which was created by the circumstance that the liability of the defendant had been denied by the earlier decision, but affirmed by the one which was being rendered. That the rationale of the Dudgeon Case also was similar to that of the Myers Case is inferable from the extract quoted in § 2, note 10, supra. But the correctness of this explanation of the doctrinal basis of these cases seems to be disputable, in view of the language used in the opinions. The conception underlying the Myers Case is shown by the statement that, "even though the person who causes the injury is a contractor, he will be regarded as the servant or agent of the corporation for whom he is doing the work, if he

ters on which the claims were based. The circumstances involved in them were as follows:

Injury was caused by blasting operations to adjoining premises.1 Cattle strayed on adjacent premises.2

A vehicle came into collision with a stone left on the highway.3

The work of construction was so performed as to render a highway defective.1

A pedestrian was injured by the iron rail of an awning which was being moved for the purpose of obtaining more space for a street railway.5

is exercising some chartered privilege or power of such corporation, with its assent, which he could not have exercised independently of the charter of such corporation." An examination of both cases will show that, although the fact that the work in question was done in a street under a municipal permit was mentioned among the elements involved, the absolute duty to which a corporation is subject with regard to the performance of work involving the exercise of corporate power was, to say the least, treated as an independent ground for affirming the right of action. Moreover, there seems to be some want of accuracy in the statement of the court that the West Case was an authority for a negative answer to the general question said to be involved in the case under review, viz., "whether the construction of a railway by a contractor upon the right of way and property of the railway corporation is the exercise of chartered powers or privileges by the contractor." That it was not intended by the earlier decision to go further than to exclude from the domain covered by the company's absolute duty persons hired to assist in the performance of the work is sufficiently clear from the language used in the opinion. Indeed, it is manifest that, so far as claimants not belonging to this class were concerned, a negative answer to the question, in the broad form in which it was proposed, could not have been returned without contravening the earlier decision, which the court treated as correct.

1 McCafferty v. Spuyten Duyvil & P. M. R. Co. (1874) 61 N. Y. 178, 19 Am. Rep. 267; Booth v. Rome, W. & O. Ter

Conditions calculated to frighten horses on a highway were created in the course of the stipulated work."

A person traveling on a construction train was injured as a result of its being negligently operated.7

A child was drowned in a pool of water formed by a heavy storm on the defendant's right of way. 8

A child was run over by a construction train. 9

Cattle were run over by a construction train. 10

A servant of the contractor was injured when a bridge upon which he

minal R. Co. (1893) 140 N. Y. 267, 24 L.R.A. 105, 37 Am. St. Rep. 552, 35 N. E. 592.

2 Alabama Midland R. Co. v. Martin (1893) 100 Ala. 511, 14 So. 401 (contractor guilty of negligence in throwing down old fences and constructing defective ones); Clark v. Vermont & C. R. Co. (1854) 28 Vt. 103 (contractor's workmen left down the bars of an opening leading into plaintiff's field).

3 Pawlet v. Rutland & W. R. Co. (1855) 28 Vt. 297.

Hauser v. Metropolitan Street R. Co. (1899; App. T.) 27 Misc. 538, 58 N. Y. Supp. 280 (plaintiff's horse sank into the soft earth between the paved portion of a street on which a street railway was being constructed).

5 O'Rourke v. Hart (1860) 7 Bosw. (N. Y.) 511; later appeal in (1862) 9 Bosw. 301 (defendant was a director of the railway company).

McCaum v. Kings County Elev. R. Co. (1892; Brooklyn City Ct.) 46 N. Y. S. R. 327, 19 N. Y. Supp. 668, where the plaintiff's horse was frightened by the flapping of a piece of loose canvass suspended under a trestle as a protection against the dropping of paint onto the street underneath.

Union P. R. Co. v. Hause (1871) 1 Wyo. 27 (claimant was being carried in the caboose on a regular ticket issued by the contractor's employees).

8 Charlebois v. Gogebic & M. River R. Co. (1892) 91 Mich. 59, 51 N. W. 812.

9 Meyer v. Midland P. R. Co. (1873) 2 Neb. 319.

10 Houston & G. N. R. Co. v. Van Bavless (1876) 1 Tex. App. Civ. Cas. (White & W.) 248.