City & Suburban Railway Co. v. Moores

Boyd, J., delivered the opinion of the Court. This suit was instituted by Minnie Moores and her husband against the City and Suburban Railway Company for injuries sustained by her through the alleged negligence of the defendant’s agents. Whilst she was driving along the Baltimore and Yorktown Turnpike Road her horse- was frightened - at a steam engine, which was being used for hauling cars containing ballast to be put on the tracks of the Railway Company. The defendant introduced in evidence two contracts between the President, Managers and Company of the Baltimore and Yorktown Turnpike Road and one James B. White, by which the latter contracted to do certain work for the Turnpike Company, including the delivery of broken stone to be used in ballasting and back-filling the railway tracks constructed on the pike, and also in macadamizing the pike, and claims that the work was being done under these contracts by White as an independent contractor.

The defendant offered two prayers, which were refused by the Court below, which raise the only questions presented for our consideration. The first prayer asked that the jury be instructed, that if they found ■ there was a contract between the Turnpike Company and White for doing certain work upon and adjacent to the bed of said turnpike offered in evidence; that said White conducted the work under the terms of said contract, without any interference on the part of the Turnpike Company or the defendant in ³⁵³ mode or manner of doing the work; and that the injury complained of resulted from the running of an engine engaged in the prosecution of the work, which belonged to and was under the control of said White, then the plaintiff could not recover. The second asked the Court to instruct the jury, that if they found that the Turnpike Company and White entered into the agreements offered evidence to do certain work therein set out; that in the prosecution of the work White used approved and ordinary machinery, and employed competent and skillful workmen in the management and conduct of said machinery; that the work was superintended with the usual and ordinary care incident to the same; that the injury complained of was done during the prosecution of the work in the manner testified to by the plaintiff’s witnesses; that the employees in, on and about said engine were selected and employed by White and were under his exclusive control, then the plaintiff could not recover, although the jury may believe the whistle was blown on the engine as testified to by plaintiff’s witnesses. It will be observed that both of these prayers go upon the theory that White was a contractor to perform the work being done, which resulted in the alleged injury to Mrs. Moores, independent of and free from any control of the company as to how the work should be done, and hence the defendant was not responsible for the negligence of the servants of White.

The general principles applicable to a case where work is to be done by a contractor, upon his own responsibility, who is not subject to the control of the employer as to the manner in which it is to be performed, are so familiar and well-established that it would be useless to go into any extended discussion of them. The difficulty generally is to determine who is to be regarded as the master of the wrongdoer under the facts arising in the particular case before the Court, and whether there is any such relation existing between the person for whom the work is to be done and the negligent party, as to hold the former ³⁵⁴ responsible for damages sustained by third persons through such negligence. Even if the relation of principal and agent, or master and servant, do not, strictly speaking, exist, yet the person for whom the work is done may still be liable if the injury is such as might have been anticipated by him, as a probable consequence of the work let out to the contractor, or if it be of such character as must result in creating a nuisance, or if he owes a duty to third persons or the public in the execution of the work. This case presents some further questions, peculiar to itself, from the fact that the defendant is not a party to the contracts offered in evidence, so far as disclosed by them, and in this respect differs from the cases cited in argument.

The testimony, however, is that the road was being constructed by White, at the time of the accident, for the defendant, and that the work was done under these contracts. It is true that there was nothing in the record to show just what the relations between the Turnpike Company and the defendant were; or how the latter became interested in the contract. The Railway Company may have been an undisclosed principal, as contended by the appellant’s counsel; the Turnpike Company may have owned the railway tracks when the contracts were made, or it may, as the owner of the turnpike road, have contracted for the work to be done on the railway tracks whilst doing the other work for it mentioned in the agreement, under some arrangement with the Railroad Company. But, however this may be, if the jury believed the work was being done by White under these contracts, we must assume, in order to enable the plaintiff to recover at all, that it was being done for the defendant, and must connect it with the contract.

If that be not done, then clearly the defendant is not liable to the plaintiffs, and their only remedy would be against White or the Turnpike Company, if it is not relieved on the ground that White was an independent contractor. The mere fact that the Railway Company owned the ³⁵⁵ tracks on which the engine was being run in performance of those contracts, would not make it liable, and it would not be connected with the act which caused the injury to Mrs. Moores, for its mere permission to the Turnpike Company or its contractor to use the railroad tracks would not make it responsible. If, for