9

superior cannot be interposed for the contractor's protection in a suit by a third person injured by his negligence." The contractor's liability for damages to third persons seems to be limited to negligent acts or omissions during the prosecution of the work, but this limitation does not apply as between the contractor and his employer. Thus, where a contractor under the charter of a turnpike company entered the enclosed land of another and took materials therefrom for the construction of the highway, and, by reason of the fence on the premises being left open, cattle entered and destroyed the crop thereon, the contractor is the proper party defendant in an action for the damages. So, the contractor for the iron work of a building is liable where, by reason of his negligence in removing braces from a wall, the wall fell and caused the damage complained of.10 And a contractor was also held liable where he permitted a guy-rope to a derrick to sag so as to be struck by the top of a passing carriage, thereby causing damage to the carriage, even though the accident occurred in the contractor's absence.11 And where a ditch contractor so negligently constructed a ditch that, instead of draining the water off the plaintiff's land, it carried water onto the land, the contractor is liable for the damages resulting from his negligent act.12 But, as between a contractor and third persons, the contractor is not liable where the injuries complained of resulted after the work had been completed and turned over to the owner.13 Thus, where a contractor cleaned a vault on leased premises, and the landlord accepted and paid for the work, the contractor is not liable for an injury to a child of the tenant, caused by a board left upon the roof of the building falling upon the child more than a year after the completion of the work.14 So, a contractor was not liable where a person was injured by the falling of a building negligently repaired by the contractor and turned over to the owner long before the injuries were

'Fish v. Dodge, 38 Barb. (N. Y.) 163.

* Vol. I, § 686.

Crawford v. Maxwell, 3 Humph. (Tenn.) 476.

10

Pasquini v. Lowry, 63 Hun (N. Y.) 632; s. c. 18 N. Y. Supp. 284. "Geer v. Darrow, 61 Conn. 230; s. c. 23 Atl. Rep. 1087.

"Fromm v. Ide, 68 Hun (N. Y.) 310; s. c. 23 N. Y. Supp. 56; s. c. aff'd, 144 N. Y, 630; 39 N. E. Rep. 493. In an action against a contractor by a third person for injuries received by falling into a ditch dug by the defendant, the jury were properly instructed that if the

defendant had control of the ditch he would be responsible for any negligence connected therewith, but if he was merely employed to do the work under the superintendence and direction of another he was not liable: Jessup v. Sloneker, 142 Pa. St. 527; s. c. 21 Atl. Rep. 988.

13 Curtin v. Somerset, 140 Pa. St. 70; s. c. 21 Atl. Rep. 244; 27 W. N. C. (Pa.) 336; 23 Am. St. Rep. 220; 12 L. R. A. 322; Vol. I, § 686.

14 Fitzmaurice v. Fabian, 147 Pa. St. 199; s. c. 23 Atl. Rep. 444; 29 W. N. C. (Pa.) 339.

inflicted.1 15 So, a brick contractor has been held not liable where, notwithstanding the fact that the work was done in a workmanlike manner in accordance with the plans and under the direction of the architect, the building fell and caused the injuries complained of, by reason of a defect in the plans of the architect, which was not known to the contractor.16 Where a workman engaged to make alterations in a building went, without invitation or request, upon a scaffold constructed by another contractor for different work, the contractor who constructed the scaffold was held not liable for the employé's death occasioned by the falling of the scaffold.18 It has also been held that there is no right of action against the personal representative of a deceased contractor who was engaged to erect a building that would bear a stipulated weight, the contractor having died before completing the building, where, after his death, it fell under a less weight and injured the building of another, the fall being occasioned by the use it was put to after the contractor's death, and not by the defective construction of the wall by the deceased contractor. 19

§ 7431. Liability of Landowners with Reference to Negligent Acts Committed on their Land.—The liability of landowners for negligent acts committed on or about their premises is based upon the principle that a landowner is obliged to see to it that his land is so used as not to injure others; but this liability does not extend to acts of trespassers upon his land, which he was not able to prevent in the exercise of reasonable care and diligence, 20 nor to acts of other persons, which he had no reason to anticipate.21

§ 7432. Cases Illustrating the Liability of the Landowner.-The landowner has been held liable for damages resulting from the negligent use of his land under the following circumstances:-Where the plaintiff was injured by the falling of the fire walls and cornice of a building, caused by the accidental pulling of an electric wire by a third person, which was attached to the walls, where, in the exercise of due care, the owner should have known the wire was so attached ;22 where a building was rendered unsafe by trespassers, and it was in the power of the owner to prevent such acts and restore the building to safety previously to the accident;23 where a passer-by was injured

15 Daugherty v. Herzog, 145 Ind. 255; s. c. 44 N. E. Rep. 457; 57 Am. St. Rep. 204; 32 L. R. A. 837.

16 Daegling v. Gilmore, 49 Ill. 248. 18 Mauer v. Ferguson, 17 N. Y. Supp. 349.

19 Methodist Episcopal Church v. Rench, 7 Ohio St. 369.

20 Althorf v. Wolf, 22 N. Y. 355; aff'g s. c. 2 Hilt. (N. Y.) 344.

21 Mahoney v. Libbey, 123 Mass. 20; s. c. 25 Am. Rep. 6.

22 O'Connor v. Andrews, 81 Tex. 28; s. c. 16 S. W. Rep. 628.

23 Tucker v. Illinois Cent. R. Co., 42 La. An. 114; s. c. 7 South. Rep. 124.

24

because of the owner's neglect to repair a building damaged by fire, for the reason that an insurance company had elected to make repairs under its contract of insurance; where a defective wall at the time it fell was in the possession of another for repairs ;25 where a lot-owner engaged a contractor who he knew was in the habit of blasting in violation of a city ordinance, and damages resulted from the contractor's violation of the ordinance;26 where damages resulted from negligently maintainnig a party wall owned by two or more persons.27 So, where real estate adjoining a highway is allowed to get out of repair and cause injury to persons using the highway, the owner is the proper party defendant if there is no one in possession; but if in possession of a tenant, then the tenant is liable.28 So, where one was injured by a box thrown from the defendant's mill door to a truck on the sidewalk, the defendant is liable.29 So, where one was killed by the falling of the front wall of three buildings, each owned by different persons, but having a common front wall, which was allowed to remain in a dangerous condition for a month after the rest of the buildings were destroyed, the owners were liable.30 And the landowner has been held liable where a brakeman was injured by the dangerous position of a bridge over the railroad-track, which connected two of the defendant's buildings; and where the owner of land permitted his premises to be used by another in such a negligent manner as to cause injury to third persons.32 Where a urinal basin is so constructed that if the perforations are at all obstructed it will not carry off the water fed by a supply-pipe, and damages result by reason of an unknown party leaving open a stopcock, the liability of the owner, if any, rests upon positive malfeasance without regard to negligence.33 Where a colt was killed by falling into an excavation wrongfully constructed upon the plaintiff's premises by the defendant, though not within the plaintiff's enclosure, the defendant is liable where the colt was rightfully upon the land.34

"Steppe v. Alter, 48 La. An. 363; s. c. 19 South. Rep. 147; 55 Am. St. Rep. 281. Compare Henderson v. Sun Mut. Ins. Co., 48 La. An. 1031; s. c. 20 South. Rep. 164; 55 Am. St. Rep. 292.

25 Knoop v. Alter, 47 La. An. 570; s. c. 17 South. Rep. 139.

"Brannock v. Elmore, 114 Mo. 55; s. c. 21 S. W. Rep. 451.

"Kluder v. McGrath, 35 Pa. St. 128.

20

Grier v. Sampson, 27 Pa. St. 183. Kelley v. Cohoes Knitting Co., 8 App. Div. (N. Y.) 156; s. c. 40 N. Y. Supp. 477.

30 Simmons v. Everson, 124 N. Y. 319; s. c. 26 N. E. Rep. 911; 21 Am. St. Rep. 676.

31 Dukes v. Eastern Distilling Co., 51 Hun (N. Y.) 605; s. c. 4 N. Y. Supp. 562; s. c. aff'd, 123 N. Y. 652; 25 N. E. Rep. 954.

32 Gardner v. Heartt, 2 Barb. (N. Y.) 165.

33 Robbins v. Mount, 27 N. Y. Super. 553; s. c. 33 How. Pr. (N. Y.) 24.

34 Kellar v. Shippee, 45 Ill. App.

377.

§ 7433. Cases Illustrating the Non-liability of the Landowner.— The landowner has been held not liable for injuries resulting from the use of his land, where a pedestrian passing by the defendant's building was injured by the falling of the stone coping from defendant's chimney, the coping being accidentally thrown off by a third person in an improper and unauthorized use of it.35 So, where two lot-owners contract with a third person to build connected houses on the lots under a several contract, and an injury results from the combined negligence of the contractor and one of the lot-owners, the other lot-owner is not liable.37 So, where one under a contract of purchase undermined the walls of an adjoining owner while making excavations for the purpose of building, the vendor and owner is not liable for the acts of the purchaser.38 So, a general owner of land is not liable for negligent acts committed on or near his premises, where they were not done on his account, nor at his expense, nor under his order or control.39 Nor is the owner of an unenclosed lot liable for injuries resulting from an unguarded excavation dug without his authority, knowledge, or consent, by other persons.40 A landowner has been held not liable for the death of a child which fell into a well on his premises, which was left uncovered by a third person without the owner's knowledge, the well having been properly covered by the owner, and the child having been allowed to stray away from home by the carelessness of its parents. So, the owner of premises has been held not liable for damages to an adjoining owner caused by the fall of a wall, where an insurance company had availed itself of its option of repairing the injury caused by a fire, and the wall fell while the repairs were being made, on account of the faultiness of the material used; but in such a case the insurance company was the proper party defendant.2 The owner of premises has been held not to be the owner within the meaning of a statute relating to fire-escapes, and making the owners of factories and workshops liable for injuries from failure to supply fire-escapes, where the building is occupied and used by another firm for factory purposes. 13 The executors of real estate have been held not liable for damages resulting

35 Sculin v. Dolan, 4 Daly (N. Y.) 163.

41

43

42 Henderson v. Sun Mut. Ins. Co., 48 La. An. 1031; s. c. 20 South, Rep.

37 Independence v. Bott, 135 Mo. 164; 55 Am. St. Rep. 292. Compare 301; s. c. 36 S. W. Rep. 624.

38 Earle v. Hall, 43 Mass. 353.

39 Earle v. Hall, 43 Mass. 353. 40 Maenner v. Carroll, 46 Md. 193; Illinois Cent. R. Co. v. Carraher, 47 Ill. 333.

Steppe v. Alter, 48 La. An. 363; s. c. 19 South. Rep. 147; 55 Am. St. Rep. 281.

43 Lee v. Kirbey, 9 Ohio Dec. 99; s. c. 10 Wkly. L. Bul. 449; Lee v. Smith, 42 Ohio St. 458; s. c. 51 Am.

"Holt v. Spokane &c. R. Co., 4 Rep. 839; 11 Wkly. L. Bul. 166. Idaho 443; s. c. 40 Pac. Rep. 56.

from the defective condition of the premises, where they were not authorized to make repairs, and the use of the real estate was given to another." As between the landlord and the tenant, the tenant need not be made a party defendant in an action for injuries caused by a failure to make repairs, although both may be liable.45 Where the owner of land leases it to another for a share of the crop, and the lessee engages to clear a part of the land at an agreed price, the lessor is not liable for damages to an adjoining owner which resulted from fires started by the lessee in clearing the land, and he need not be joined in the action.46 Nor was the occupant of a building liable for injuries to a passer-by who was accidentally pushed into an opening eighteen inches wide, separated from the sidewalk by a lintel three inches high, and leading to an elevator.47

§ 7434. Liability of Assumed Owner of Property.-One who represents himself to be the owner of property is liable to another who is induced to act upon such representations and is injured by the negligent acts of the assumed owner; and the latter is estopped to show a different state of facts in an action against him for the damages resulting from such negligence. Thus, where one in possession of a stallion contracts for his services and induces another to act upon the belief that he is the owner, and such other person pays out money on such assumption, the assumed owner is liable for damages resulting from his negligence, and is a proper party defendant.48 So, where one was injured by the falling of tiles negligently piled, the defendant is liable if they were under his control and custody, whether he was the actual owner or not.49 And one has been held liable for injuries resulting from certain articles over which he exercised control, although his title to them was defective.50 A railroad company exercising control over a turntable was held liable for injury to a child, resulting from the turntable being unlocked and revolved by another child, the company having knowledge that children were accustomed to play about and upon it, although the turntable did not belong to it.51

$7435. Joint Tort-Feasor as Party Defendant.-Persons who stand in the relation of joint tort-feasors,—that is, whose combined and concurrent acts of negligence cause an injury to another, may be

"Butler v. Townsend, 84 Hun (N. Y.) 100; s. c. 31 N. Y. Supp. 1094.

Milford v. Halbrook, 9 Allen (Mass.) 17; s. c. 85 Am. Dec. 735. 46 Ferguson v. Hubbell, 26 Hun (N. Y.) 250.

"McIntire v. Roberts, 149 Mass.

450; s. c. 22 N. E. Rep. 13; 14 Am. St. Rep. 432; 4 L. R. A. 519.

48 Growcock v. Hall, 82 Ind. 202. 49 Palmer v. St. Albans, 56 Vt. 519. 50 Baker V. Tibbetts, 162 Mass. 468; s. c. 39 N. E. Rep. 350.

Nagel v. Missouri Pac. R. Co., 75 Mo. 653; s. c. 42 Am. Rep. 418.