Callahan v. Burlington & Missouri River Railroad

Beok, J.

1. masteb and road respondeat superior. Were the persons who committed the wrong as shown in tbe petition, tbe servants or agents of defend-' ant in such a sense that it was liable for their ? Upon the determination of this ques-' , _ x ^ tiOn the case depends.

Tbe rule respondeat superior is limited by this principle: “The responsibility of the master grows out of, is' measured by, and begins and ends with bis control of tbe servant.” 1 Parsons on Contracts, 88. If tbe person sought to be charged under tbe rule as employer, did not contract with tbe party committing tbe wrongful act for bis labor or services, and is not directly liable to him for compensation for such labor or services, and has no such control over him as will enable tbe employer to direct tbe manner of performing tbe labor or services, be is not liable for tbe wrongful act of the agent or servant. 1 Parsons on Contracts, 90-92 and notes. In order to create tbe liability it is especially necessary that tbe control of tbe employer over tbe servant should be of such a character as to enable him to direct tbe manner of performing tbe services, and to prescribe what particular' acts shall be done in order to accomplish tbe end intended. Tbe principle may be illustrated by tbe case of a contract *565 for the .erection of a house. The proprietor bargains ¡with the contractor that the edifice shall be erected at a particular place, within a prescribed time, of prescribed materials, and in a certain style. The proprietor has no control over the workmen which enables him to direct .what means they shall use to accomplish the work, or the way of performing or executing it. The means to be used and the way and manner of performing the work are. under .the control of the contractor only. Now, if •such means, are used to do the work, or it is done in such a way and manner that another is injured, dangerous machinery being used, or reckless and careless workmen employed, the proprietor cannot be held liable, for the simple reason that the law will not hold one responsible •for the acts of others over whom he has no control. See Kellogg v. Payne, 21 Iowa, 575 , and authorities there quoted. ' The doctrine is learnedly discussed and the authorities extensively referred to by Judge Story, in his ■work on Agency, sections 454-459 and notes. The conr flict in the authorities is pointed out .or reconciled, and the principles above announced are substantially laid •down.

•2. — appliestion of the , principie. . ' The parties doing the wrongful acts complained of in .appellant’s petition, were the servants of the sub-contractor, and were not in any way under the 7 , , control ot defendant; it cannot .therefore be ■liable for such wrongful acts.

It is contended, with much ingenuity, by appellant’s .counsel, that, under the stipulation of the contract with :Wolf &.Co., quoted in the statement of the ease, appellee retained the right to direct and control the workmen, and did actually exercise that right through its agent, the engineer. A little thought will give a different view ■ upon this point. The contractors obligated themselves to ;clear off the ground covered by the right of way, by *566 removing or burning up the trees, logs, etc., as the cngi neer should direct. The clearing of the ground was the work to be done, the end to be attained, and could be done in one of two modes at the option of the defendant.

In the exercise of that option, burning was chosen as the mode of accomplishing the end. But with the manner of burning, defendant had nothing to do, and over it exercised no control. It could not direct that the combustible materials should be gathered in large or small heaps, or on one side of the roadway or the other, or that the act of burning should be prudently and carefully done, and proper precautions of watchfulness be exercised in order to prevent danger to the property of others, all relating to the manner of doing the work required by the contract to be done. Steel v. The South-Eastern Railway Co., 81 Eng. Com. Law, 550.

The petition does not allege that the burning of the wood, brush, etc., was in itself an act necessarily dangerous to the property of appellant, but avers that the damage resulted because the act was carelessly and negligently done. The appellant did not sustain the loss on account of the act itself, but on account of the careless and negligent manner in which it was done. Appellee directed that the act should be done, and it was lawful and innocent in itself; the contractors only, had control of those who did the act, and could alone direct the manner of^its performance. The loss resulted from the manner of the act done; it is clear that appellee is not liable therefor.

3._statute construed. It is contended that section 1327 of the Bevision, fixes liability upon the appellee. The provisions of the statute referred to in this section, relate to the right 0f way 0f raQroa(js and the manner of acquiring it, and contain sundry regulations in regard, to the crossing of plank-roads, turnpikes, canals and water courses by railroads, and impose certain duties upon the *567 corporations in respect to bridges. Tbe provisions of this section, and the statute therein referred to, do not extend the liability of the corporations to acts of those not their agents or servants.

Affirmed.