L. & N. R. R. v. Smith's Admr.

119 S.W. 241, 134 Ky. 47, 1909 Ky. LEXIS 353

Opinion

Opinion op the Court by

Judge Lassing

— Reversing.

While -assisting in making an excavation under the track of the Louisville & Nashville Railro-ad Company near Nolan, Ky., Aaron Smith wa,s killed by the earth’s caving in upon him, and his administrator brought snit against said company and George Taylor, a contractor, for whom he was working, to recover damages for his death, on the ground that it was due to the negligence of the defendants, in that they failed to furnish Smith a reasonably s'afe place in which to work. The defendants filed separate answers. The railroad company denied negligence on its part, and pleaded that its co-defendant, Taylor, was an independent contractor, and alleged that, if the death of plaintiff’s intestate was due to negligence, it was that .of his employer, Taylor, the independent contractor, for which it was in nowise responsible. Taylor denied negligence on his part, and sought to shift the responsibility for the .accident which resulted in the death of plaintiff’s intestate upon the railroad company. Upon the issues thus joined, the case was tried before a jury, which returned a verdict in favor of plaintiff against the railroad company for $5,000. The jury also returned a verdict in favor of the defendant' George Taylor. Prom the judgment predicated upon this verdict, the railroad company is appealing.

Several reasons are assigned why the judgment should be reversed, but from the conclusion which we have reached it is necessary to consider only one, to-wit, whether or not the court erred in refusing to peremptorily instruct the jury to find for the railroad company on the ground that the decedent Smith was an employe of defendant George Taylor, who was an independent contractor, and for whose negligence, if any, the railroad company was not liable. The evidence shows that the railroad company had a contract with its codefendant, Taylor, to do the masonry work on the Louisville Division of its ro'ad for the years 1907 'and 1908. This contract, which is in writing, and signed by Taylor, though not signed by the railroad company, is as follows:

“We, the undersigned, hereby .agree to be governed by 'the following terms during the years of 1907 and 1908, for masonry work on the Louisville Division of the L. & N. R. R.:

Stone, cut for bridge masonry:

Quarry face..................per Cu. Yd. $7 00

Dressed .....................per Cu. Yd. 7 50

Ooping ......................per Cu. Yd. 8 00

Scale and tank foundations in place ........................per Cu. Yd. 5 00

New box culverts, in place.......per Cu. Yd. 4 00

Box culvert extensions 'and pipe lieadwalls ....................per Cu. Yd. 4 50

Paving ........................per Cu. Yd. 2 00

Of old stone................per Cu. Yd. 3 00

.Dry Retaining Wall:

Of new stone.................per Cu. Yd. 4 00

Riprap ......................per Cu. Yd. 2 00

Under 30 Cu. Yds.............per Cu.- Yd. 25

Dry Excavation:

Over 30 Cu. Yds...............per Cu. Yd. 30

Water excavation...............per Cu. Yd. 60

“Force account to be paid for excavating for, tear-' ing out, and rebuilding bridge masonry, for pointing up and -other slight repairs to masonry; for trucking materials from ‘the station whenever necessary, for whatever other work not classified above. In addition, ten per cent, of entire force account is to be allowed for use of tools.

“Contractor to receive in addition to the above, twenty (20) cents per hour, as foreman, during actual time that any one of his gang is being paid for force account.

“Railroad Company to furnish sand and cement, and such transportation as it may deem proper.

(‘Signed.) “G-eo. W. Taylor.”

There was an old culvert near Nolan, Ely., which was not of sufficient -size to carry off the water, and the railroad eomp-any notified Taylor that they desired him to -put in a new double culvert, instead of the old culvert, 'at that place. After receiving this notice and the plans and specifications, he commenced the work, and had done a considerable part of the excavating before the decedent Smiitlr was employed. On the morning of the day on which Smith met his death, he applied for work to one H. F. Troutman, who was Taylor’s foreman in charge, and was employed by Troutman, and put to work immediately after the noon hour. After he had worked some two hours or more, the walls of the cut in which he was working’. for the purpose of putting’in the culvert caved in, and smothered or mashed him to death.

From the evidence in this case it is clear that the work of putting in this double culvert was being done by the defendant George Taylor under the contract above set out. The railroad company had no control or authority over Taylor in the conduct of said work further than to see that it was done according to the 'specifications which it had furnished him. It is true ■that during the whole of the time the work was. being ■done the company kept a man upon the ground for the purpose of seeing that the railroad track was kept ■safe for the passage of its trains over the place where the excavating was being done. In fact, the company before the work of excavating for the culvert had commenced had its bridge foreman put in certain false work to support the track. This false work consisted of a bent of four legs resting on a sill which was laid upon one of the walls of the old euilvert. Those legs were 12 inches square. On the top of them was a cap 8 by 12 inches. On the top of this cap rested four stringers, three of which were 16 inches square, and the other 8 by 16 inches. These ■stringers extended 30 feet north from the bent .and 30 feet south from the bent, and rested at the other end upon the railroad embankment. Upon these stringers the cross-ties rested. It was- shown that this was the usual and customary way for supporting the track while work of this character was being done. It is likewise shown that, when so supported, the track was safe for the passage of trains. After this trestle or false work was put in by the company, Taylor took charge of the work of making the necessary excavation and building the culvert. In the conduct of this work he employed his own hands, and, either personally or through his foreman, directed the manner of 'making the excavation, and the company had no control whatever over his hands, or the manner in which the excavation was made, further than to see that its track was not endangered by the work. The method of making the excavation and the extent thereof were left entirely under the control of the contractor Tay-. lor. He was paid by the yard for such excavating as it was necessary to do and for the stone work done by him. His written contract required him to remove the necessary earth, for which he received so much per cubic yard, and build the stone culverts, for which he was likewise paid so much per cubic yard; and while, throughout his testimony, he sought to shift the responsibility from himself to the railroad company, when asked the direct question what-he had to do under the plans and specifications, he stated, “I had to make excavations such as would allow me to build the culvert according to the plans that were furnished,” and he also said that the duties of Miller, the man whom the railroad company had looking after its interests there at that time, were to look after the safety of the track and trains, that Miller gave no directions except not to get too close to the cross bent, which supported the false work or trestle. About these facts there is practically no dispute in the evidence, and they clearly show that the contractor Taylor was an independent contractor. The evidence fur ther shows that Taylor was possessed of sufficient skill and ability to enable him to properly carry on this work. In fact, it shows that he had much experience in putting in railroad culverts and doing railroad bridge masonry. It being shown that Taylor was doing this work as an independent contractor, and that he possessed the requisite deg’ree of skill to properly carry it out, the railroad cannot be held answerable for the injury to decedent, unless, as is contended by counsel for appellee, this was a class or character of work which the railroad company could not let to 'an independent contractor and relieve itself from liability by so doing.

There .are certain well-defined cases where, from the nature of the undertaking or the character of the employment, an employer cannot relieve himself from liability on the ground that the work was done by an independent contractor. These cases for convenience may be grouped into five classes: (1) Where a statute imposes a duty upon the employer to perform the work in a given manner; (2) where the undertaking is a matter of contract, imposing upon the employer a fixed duty; (3) where it is contrary to law; (4) where it creates a nuisance; and (5) where, from the nature and surroundings of the work proposed, its execution is necessarily attended with such hazards as that injurious results may reasonably be expected to follow.

The case under consideration, if it comes within any of these classes, clearly belongs to the fifth class. Where one undertakes to do upon his property that which is necessarily dangerous to adjacent property, he can not excuse himself from liability to such adjacent property owner for any injury that might result from the work undertaken, even though it be done by an independent contractor. In such cases, and in eases where the employer is held responsible for injuries resulting to third persons by reason of the hazardous nature of the work undertaken, the responsibility is made to rest upon the employer only because of the fact that the undertaking is in itself so hazardous and dangerous that, though prosecuted with care, injurious results may be expected to follow. There is, at least, an apparent lack of uniformity in the decisions of courts of last resort upon this question, and while it would seem from a cursory examination that different courts have adopted widely different rules in determining the liability of employers for damage done in the conduct of work by independent contractors, a careful analysis of the various opinions of the different courts shows that the reason for the rule in each particular case is the same, to wit, if the work to be done is of such a hazardous nature, or its proximity to other property is such that injurious results may reasonably be expected to follow its proscution, even though conducted in a reasonably prudent and careful manner, then the employer cannot excuse himself from 'liability for lan injury that may result therefrom, even though the work be done by an independent contractor. Familiar illustrations of this rule are furnished by those undertakings where blasting is required to be done or fireworks are used. In all cases where blasting is to be done upon property so near to other property that, no matter how carefully the work is done, injurious results may be expected, the employer has invariably been held liable for any damage that has resuilte'd; and, where displays of fireworks have been given for pay, the owner of the property has been held responsible for any resulting damage,- even though the exhibition was conducted by an independent contractor. But, on the other hand, in cases of this character, where the nature of the work in which the blasting is required to be done is such that injurious results may not "be reasonably expected, where the work is carefully done, then the employer has been held to be not liable. Most business enterprises are attended with some elements of hazard; and, while the work of digging-ditches and making excavations similar to that which was required in building the culvert in the case under consideration is not necessarily dangerous, it has connected with it, of course., some elements of danger or hazard; but where the work is properly conducted, and the banks or sides of the cut or ditch are properly sloped, the attendant dangers are minimized.

Without disputing- the correctness of this proposition, counsel for appellee argues that in the case at bar the dangers were greatly increased by reason of the fact that trains were run over the track above the ditch at such a rate of speed as to jar the earth and cause it to crack and become much more liable to cave iu. There is evidence which shows that by the passage of trains overhead the earth was caused to vibrate and tremble, and that, following the passage of trains, the earth did crack more or less while the excavation was being made. The cave-in occurred from the north side of the cut or ditch. There was nothing to have prevented the contractor from giving this cut on that side as much slant or slope as he desired, and he testifies that he had the right to give the bank such slope as, in his judgment, would enable him to properly, safely, and expeditiously carry on the work; and that, exercising this judgment, he gave to that wall of the cut what he regarded a sufficient slope — such slope as was usually given the walls of ditches or cuts of this character. Just what caused the cave-in is not known. "Whether it was due to the loosening of the earth in the fill, caused by the passage of trains, or to the fact that the earth of which this cut was made had less cohesive powers than is usually found, cannot be known. It is certain that it cannot be chargeable to any defective condition of -the false Avork put in by the riailroad company to support the track overhead, and it is also equally certain that the likelihood of its happening might have been lessened had the sides of the cut been given a greater slope; but, inasmuch as it is shown that the slope given to this cut was such as is usually given in making excavations of the size, depth, and character' as that called for in the case under consideration, the accident may more properly be considered as one which usual prudence, care, and foresight could neither Lave anticipated nor avoided.

The making of any excavation is necessarily attended with some danger. The sides of the ditch or cut are liable to slip or fall in. The extent of this liability is dependent upon many circumstances — the amount of moisture in the ground, the character and condition of the soil, the slant of the walls, or depth of the cut. All of these matters have to be taken into account. So likewise in making an excavation under the track of a railroad, where the ground on either side is subjected to heavy pressure by the passage of trains over it, the liability that the sides will slip, or cave in is increased. These matters are common knowledge to those engaged in that character of business, and in the prosecution of the work are necessarily taken into account and consideration. If the contractor failed to give the side of the cut the proper and necessary slope, the fault was his, and not that of his employer, and, if such failure caused the cave-in which resulted in the killing of appellee’s intestate, the contractor alone is answerable therefor. The only difference between excavations made beneath a railroad track and elsewhere is that the sides of the cut under the railroad track are subjected to pressure when trains pass overhead. The fact of this pressure must be and necessarily is taken into consideration in determining the slope that should be given to the sides of the cut. It is a known quantity, and can be dealt with as any other known element that tends to increase the hazard of the business.

Of course, a very different question would be presented if by reason of the prosecution of this work a train had been derailed, and a passenger injured; for in such case the duty of the company to furnish the passenger with siafe passage is such that it could not excuse itself for any negligent act on the part of an independent contractor that in any wise impaired the safety of its track, but no- such question as that is presented here. No such relation existed between deceased and the railroad company. The railroad company was under no duty to deceased, since the relation of master and servant did not exist between them. The duty which it owed to the traveling public to maintain its track in a safe condition for the passlage of its trains did not in the least obligate it to look out for the safety of deceased, who was an employe of an 'independent contractor engaged in a separate and distinct undertaking. The false work which the railroad company put in to support its track while the excaviaition was being made and the new culvert laid in no wise contributed to produce the eave-in. It was not intended that it should in any wise contribute to the safety of the place where deceased was working further than to prevent trains from falling into the excavation. That the false work was amply sufficient for the purposes for which it wa,s used is abundantly shown by the regord. The weight of the false work and of the passing trains which it sup-supported did not rest upon the earth where the cave-in occurred, but some distance beyond that; nor did the cave-in occur beneath the railroad track, but to one side rather.

With the knowledge on the part of the railroad company that the passage of its trains must necessarily jar the earth, and perhaps cause the sides or walls of the excavation which was being made to crack, can it be said that the making of 'this ditch was necessarily of such a hazardous nature that injury might be expected to result therefrom, even though the work was done in a careful and prudent manner! We think not; for, while there is always more or less liability that the earth from the banks or sides of a ditch will fall or cave in, this liability may be greatly reduced if not entirely overcome by giving the banks a proper and reasonable slope. The greater the slope, the greater the liability of a cave-in is lessened. The contractor having in charge this particular work was a man of large experience in that business. He land his bosses under him, and other witnesses who testified, stated that this work was being done in a reasonably prudent manner, and that, when so done, a eave-in might not reasonably be expected to occur unless it should riain and moisten the earth. Since it did not fain, the necessity for giving the sides of the cut additional slope or slant was obviated in the judgment of the boss in charge. Work of this character is being constantly prosecuted by railroad companies. Excavations are being made in almost innumerable ways in the prosecution, of many kinds and characters of work. The digging of foundations for buildings, ditches, or drainage, cisterns and cellars, .and, in fact, the making of any hole in the ground for any purpose, bias connected with it all the elements of hazard which were connected with the case under consideration save and except the pressure caused upon the earth by the passage of the trains overhead. The employer who engages an independent contractor to dig a ditch occupies a very different position toward the employes of such independent contractor from that which he occupies towlard adjacent property owners or third parties, to whom he owes some duty. For instance, if the excavation is to he made so- close to the property of another as to deprive such property owner of his lateral support, the employer cannot excuse himself because the work was done by an independent contractor.

And again, where an employer, a common carrier, is having work done about or upon its track, it cannot relieve itself from responsibility to its passengers or its servants in the operation of its trains by having such work done by an independent contractor. Such duties, statutory or contract, as an employer owes to third persons, clannot be destroyed by the intervention of an independent contractor. A case might be presented where from the nature of the undertaking the employer would be responsible for any injury that might result to the employes of the independent contractor under him in the prosecution of the work, but the case under consideration is not such. The railroad company was under no duty whatever to deceased, and cannot be held 'answerable for his injury and death. The record in this case clearly presents every element which was required to establish the fact that George Taylor, the employer of deceased, was an independent contractor. The written contract shows that he wia,s such; and, while it would appear from certain isolated questions and answers given in Ms testimony that he was working under the supervision and direction of other employes of the railroad company, when his entire testimony is considered, it is evident that such was not the case. Being an independent contractor, and the work which he was doing not being of such la. hazardous nature as that it could not he let to an independent contractor, the trial court erred in overruling the motion of the defendent railroad company for a peremptory instruction.

For this reason, the judgment is reversed, and the cause remanded for further proceeding consistent with this opinion.