
    Jane Conlin, Administratrix of James Conlin, vs. The City Council of Charleston.
    
      Pleadings — Negligence — Contributory Negligence — Master and Servant — Independent Contractor.
    
    In an action "by an administrator, under the Act of 1859, to recover damages for causing his intestate’s death, the declaration should show the existence of one or more of the parties (wife, husband, parent, and children) for whose benefit the action lies.
    An objection to a declaration which might have been fatal on demurrer, held, to have been cured by the verdict, and motion in arrest of judgment refused.
    One who has himself contributed to the cause of the damage of which he complains, cannot recover against another who also contributed to the same cause ; but this must be understood of the proximate, and not any remote or collateral cause.
    The rule which exempts a master from liability to a servant, for injury caused by the negligence of a fellow-servant, is not confined to cases where the two servants are engaged in a common business which their joint efforts are required to accomplish.
    The owner of property is not liable for private wrongs done in the prosecution of his work by an independent contractor, who has been employed by him to do some work upon it for the owner’s benefit, but who is not subject to his, the owner’s control. If the work involved danger to others, and the contractor was known to be unworthy of trust, or if the thing done amounted to a public nuisance, then the owner might be liable.
    BEFORE MOSES, J., AT CHARLESTON, JUNE TERM, 1867.
    Tbe report of bis Honor, the presiding Judge, is as follows :
    “This was an action on the case brought, as plaintiff’s attorney, in his opening remarks, said to the jury, by the plaintiff as administratrix of James Conlin, under the Act of 1859, to recover damages of the defendants for the death of the intestate, caused by the wrongful act, neglect, or default of the defendants. The pleadings were in no way brought to my attention, and no question raised in regard to them.
    “James Conlin died March 22d, 1866. He was thirty-eight years of age, sober, of good health and habits. At his death, his family consisted of the plaintiff, his widow, the administratrix, and three children. A child, since his death, has been' born of his wife, and he, therefore, left four children. ITe supported his family comfortably and handsomely. He worked by day in the yard of the South Carolina Railroad Company, at one dollar and fifty cents per day, and since December, 1865, served the defendants as one of the steeplemen at St. Michael’s Church, at night, at twenty dollars per month. Had been before a steeple-man at Orphan House. The steeple is under control of guard house, and that is under control of City Council and Chief of Police; at night under the exclusive control. On the second floor of the steeple is a trap-door or round hole, six or seven feet in circumference, for which there is a cover or door ; this may be passed when open by going around it, leaving it to the right, on going up to the third floor, not in the-way. On the third floor the trap-door, four by four wide, constitutes the floor, or part of it, and opens with hinges. The steepleman, to go to his place, has to pass both these floors, and must cross that last floor. Before the war, the steepleman always carried lanterns, but during the war, when the signal corps occupied the steeple, the military authorities stopped their doing so. After the reorganization of the police department, December, 1865, lanterns were at the guard house for the steeplemen, if they wished to carry them, and the sergeant of the guard said, he had cautioned them to carry them, although he never ordered them to do so, and he knew they went up without a light. Two of the steeplemen said it was a matter of option to carry a light, no dereliction of duty not to do so, no part of duty to carry one, and not so ordered. When it was tbe custom to ring the bell at seven and nine o’clock, always carried a light; as one said, would not bother with a light when no bell to ring. Prudent to carry a light; not much difficulty with a lantern to get by; without it, if hole open, would fall in. A new hand took a light till he got used to the run of the place.
    
      “ It appeared, that about the time Conlin died, one Pat-tuce (or Paturzo) had made a contract, with the Mayor, to put up a bell in the steeple, and the Mayor was not to superintend him. Began his work March 22d, 1866, about eight o’clock a. m; at eleven o’clock, A. m., had all the tackle and purchase up ; the bell was to have been there by three o’clock, but did not come; he quit work at eleven o’clock ; he opened both the trap-doors, as it was necessary for his ropes to passthrough them; did not shut them; the ropes prevented; did not know any one was to go up at night; left no notice at guard house, or any where, that it was open; everybody could see it was open. Pattuce had been a rigger forty-eight years, and has great experience in taking down and putting up bells. Took down nearly all from the churches during the war; was to get for this job one hundred and fifty dollars. He left the doors open; the tackle was rigged to a beam above the floor to which the bell was to be raised. The wrench, to hoist, was placed on the floor where the bell was to be raised; two blocks, one fixed to the beam, and the other loose, or swinging; ropes used; the block was raised by the wrench. The block could have been hoisted up to the stationary beam, and the ropes could have been coiled on the beam; this could have been done in an hour. Main rope one and a-half inch in diameter, and about four in circumference; and when this was done (which would have taken an hour) the trap door or hatchway, could have been closed.
    
      “ Conlin bad the first watch that night, seven till nine o’clock, p. M. He went up ; not calling the hour at quarter-past seven attracted notice ; one-half and three-quarters past seven not called, a man was sent up with a lantern from guard house, to see if he was asleep, and to ascertain tfhe cause of his not calling; returned; could not find him, but found his cap on second floor, near the hole which was open, and had gone up to third floor and found the door, which made the floor, open. After this report of the facts, a sergeant was sent up, and a lieutenant went with him. By lowering a lantern from above, Conlin was found, on the ground floor of the church, mashed, crushed, and dead. There was no dispute, the fall had occasioned his death. Such is a statement of the case, from plaintiff’s testimony. Defendants offered none.
    “I charged the jury that whatever liability attached to defendants, if any, it was and must be the same as would attach to an individual, under the like circumstances. That to make the defendants liable, the loss must be traced to their negligence or misconduct, sufficiently natural and proximate, and uncontrolled by the agency of the plaintiff’s intestate.
    
      “ That if the party contributed to his own misfortune, or if, by the exercise of ordinary care, he might have avoided the consequences of defendants' negligence, he is regarded as the author of his own wrong; in other words, if the mischief complained of, be the result of the combined negligence of both parties, they must remain in statuo quo, for there can be no legal injury where the loss is the result of the common fault of both.-
    “ That the plaintiff' was not prevented from a recovery, from the fact that the intestate and Pattuce were servants in the same employ. That to exempt from liability, by reason of their having been in the service of the same employer, they must have been engaged in a common business, wbicb tbeir joint efforts were required to accomplish.
    “ That if the eause of the injury was the act of an independent contractor of the defendants, théy would not be liable to the plaintiff. That it was a question, however, for them to determine, whether Pattuce stood in the relation of such independent contractor, and to conclude, on this point, they should inquire what was his contract, and the nature of it; did it give exclusive use and right to the contractor over the place; how long was such exclusive use and right to continue; and how, as to the intestate, engaged by the defendants, to do a duty in the same place by night, was this exclusive use and right to be regarded. Did the defendants, as to him, reserve, in and to themselves, the right to use and occupy the place by night, for the duties which they required the intestate to perform for them.
    “ That after hearing the instructions they had received, it was for them to decide if the death of the intestate was caused by the wrongful act, neglect, or default of the defendants, and after very much narrowing the boundaries which the plaintiff had claimed as the extent to which they were entitled to damages, if the jury should find for her, I left the case with them.
    
      “ They returned a verdict for plaintiff for five thousand dollars.”
    The defendants appealed, and now moved this Court for a new trial and in arrest of judgment, on the grounds:
    Fob a New Tbial.
    1. Because the deceased, James Conlin, by his own negligence, or want of proper care, contributed to the casualty, whereby he lost his life, and the plaintiff is, therefore, without remedy against the defendants. Witherly, Admx. vs. 
      Regent's Canal Company, 104 Eng. Com. Law Eep. 2, and cases cited in tbe note; Caughlan vs. Balt, and Ohio R. R. Go. Amer. Law Eegister, May, 1866, p. 406; Zemp vs. Northeastern R. R. Co. 9 Eich. Eep. 90 ; Willetts vs. Buffalo Railroad, 14 Barb. 585; Barnes vs. Cole, 21 Wend. 188; Brom vs. Maxwell, 6 Hill, 592.
    2. Because Conlin and Paturzo were in tbe same employ, and, tbe defendants, the common employers, were not liable for tbe negligence of Paturzo, in leaving open the trapdoors through which Conlin fell. Murray vs. Railroad Go. 1 MeMul. Eep. 401; Hutchinson, Admx. vs. Railway Co. 5 Welsby H. and G. Excheq. Eep. 344; Wigmore, Admx. vs. Jay, 5 Ibid. 354. These were both cases under Stat. 9 and 10 Yic. c. 93, upon which our Statute is founded.
    3. Because Paturzo was not a servant of the City Council, subject to their control, in the execution of the work undertaken by him, but a contractor exercising a distinct calling, and working with his own laborers and appliances, without being subject to the control of the defendants, in the execution of his work, and the City Council are not liable for his negligence. Milligan vs. Wedge, 12 Adol. and Ellis, 737, 40 Eng. Com. Law Eep. 366; Allen vs. Hayward et al. 7 Adol. and Ellis, 973, 53 Eng. Com. Law Eep. 972 ; Hall vs. Smith et al. 2 Bing. E. 156, 9 Eng. Com. Law Eep. 525 ; Sadler vs. Henloch, 4 Ellis and Black, 572, 82 Eng. Com. Law Eep. 572; Reedie vs. London and Northwest R. R. Co. 4 Welsby, II. and Gordon, Excheq. Eep. 244; 2 Hilliard on Torts, p. 537, ch. 26, sec. 11; Ibid. p. 542, ch. 26, sec. 14; Ibid. 551 and 537; Ibid. 512; Peachey vs. Rowland, 13 Com. Bench, 186, 76 Eng. Com. Law Eep. 186 ; Story on Agency, p. 568, 587, sec. 453 b. and 454 a; Wilson vs. Penerly, 1 Amer. Lead. Cases, 644, Title Respondeat Superior, nare and Wallace’s Notes; Kelly 
      vs. Mayor of Neto York, 1 Neman, 432 ; Pack vs. Mayor of New York, 4 Seld. 422.
    4. Because bis Honor conveyed to the jury bis opinion that Paturzo could not be regarded as an independent contractor, inasmuch as the steeple was under the control of Council, and it was, therefore, in their power to interfere with his work.
    IN Arrest op JUDGMENT.
    1. Because the declaration does not set out that the plaintiff is the widow of James Conlin, nor that there is any widow living, nor that there are any next of kin, of James Conlin, living, nor, if any, how many there are, and what are their names. Lucas vs. New York Central Railroad, 21 Barb. Eep. 245; Safford vs. Drew, 3 Duer, 627.
    2. Because the declaration does not, upon its face, contain any reference whatever to the Statute of 1859. In declaring on a public statute it is not necessary to recite it, but only to state facts, bringing the case within it and to refer to it generally. Bayard vs. Smith, 17 Wend. 88 Clinton’s Digest (N. Y. E.) p. 2,492, title, Penal and Stat. actions, No. 30.
    3. Because the declaration does not allege negligence on the part of the defendants, otherwise than by or through their workmen and servants, and this is not sufficient to maintain an action against a public corporation, under the Act of 1859.
    4. Because the declaration, by its mode of averring the negligence, and in other respects, is insufficient to enable plaintiff to have or maintain the action against the defendants. — 8 and 4. — Scott vs. the Mayor of Manchester, 88 Eng. Law and Eq. Bep. 477 ; Priestly vs. Fowler, 3 Meeson and Weis. 2; Farwell vs. Boston Railway Co. 4 Met. 49 ; Brown vs. Maxwell, 6 Hill. (N. Y. E.) 592.
    
      Porter, City Attorney, for tbe motion.
    
      Phillips, contra.
   The opinion of the Court was delivered by

Wardlaw, A. J.

The Act of 1859 (12 Stat. 825) gives an action where before none lay, and provides that “ such action shall be for the benefit of the wife, husband, parent and children of the person whose death shall have been so caused, and shall be brought by or in the name of the executor or administrator of such person,” and that “the amount so recovered shall be divided among the before-mentioned parties in such shares as they would have been entitled to, if the deceased had died intestate and the amount recovered had been personal assets of his or her estate.”

The existence of one or more of the parties for whose benefit the action lies is essential to the right of bringing it, and should distinctly appear in the declaration. In this case of the four counts only, the first intimates that the deceased left wife and children, and that does it only incidentally in the statement of special damages.

The negligence for which a defendant is to be made to answer should be averred to have been his own, not his servants. In this respect, the last three counts which omit all mention of wife and children are unexceptionable, but the first, in which the right of action is obscurely indicated, is somewhat ambiguous, where “workmen and laborers” are mentioned, although the subsequent averment distinctly attributes tbe act of negligence to tbe defendants themselves.

The first of the objections which we have mentioned might upon demurrer have been fatal to the plaintiff; but we-think it has been cured by tbe verdict. It must be presumed that whatever was necessary to the maintenance of the action was proved to the satisfaction of the jury before the verdict was rendered, and to even an inartificial allegation strength sufficient to sustain the proof must be attributed, when without objection it has served to procure the verdict. The motion in arrest of judgment is then refused; but as a new trial will be ordered, leave to amend the declaration is granted to the plaintiff.

Some of. the circumstances of the case do not appear in the report, and probably, upon another trial, evidence in relation to them may be had. Why did not the bell come at the hour appointed ? By whose default was delay occasioned? Who had knowledge of the delay, and of the trap-doors, in consequence thereof, being left open for a night? If Paturzo quit work at eleven o’clock, did he return to the steeple at or before three, and when did he expect to complete the job? What agreement, shown by custom or otherwise, subsisted between the vestry of St. Michael’s Church and the City Council as to the use of the steeple? Under what regulations, with what guides, through what outer entrance, did visitors ascend the steeple? Was the opening of the church itself necessary to the raising of a bell ? How often, and for what purposes, had the trapdoors generally been opened ?

The instructions which were given to the jury on thel subject referred to in the first ground for new trial, were such as give no just ground of complaint to the appellant. He who has himself contribúted in any degree to the cause of the damage of which he complains, will not be permitted to recover against another who also contributed to that 5cause. But this must be understood of tbe proximate cause, not any remote or collateral cause. (Wilherly, Administratrix, vs. Regent's Canal Company, 104 Eng. C. L. R. 2; 2 C. B. N. S. 740.) Here it may be said that tbe immediate cause of the death was tbe fall through the trap-doors; but considering that to be rather the misfortune sustained, equivalent to the death itself, we conceive that the proximate cause of the damage was the' conjunction of two circumstances: that the trap-doors were open, and that the deceased was ignorant of their being so. Negligence is imputed to the defendants for leaving the doors open, and failing to give proper notice thereof. The deceased is said to have contributed to his own ignorance by not having a lantern; and it is a proper subject of inquiry whether, in view of all the circumstances, he was in this guilty of negligence.

The second and third grounds for a new trial regard Paturzo, in the alternative, as a servant and as an independent contractor. If he was a servant, the instructions held that the rule which exempts a master from liability to' a servant for injury caused by the negligence of a fellow-servant applies only where the two servants are engaged in a common business which their joint efforts are required to accomplish.” This is too restrictive, for the rule “ applies to cases where although the immediate object on which the one servant is employed is very dissimilar from that on which the other is employed, yet the risk of injury from the negligence of the one, is so much the natural and necessary consequence of the employment which the other accepts, that it must be included in the risks which have to be considered in his wages.” (Morgan vs. The Vale of Neath Railway Co. Law Reports, 1, Q. B. 149.) Thus the runner of an engine on a railroad takes the risk of negligence in a carpenter employed to repair the road. Here, if Paturzo was the servant of the City Council, the question would be, was tbe risk of injury from employments wbiob required the opening of tbe trap-doors of the steeple such a natural and necessary consequence of being a night steepleman, that it ought to have been considered by the deceased Conlin when he undertook for wages to be a steepleman.

The other alternative, which regards Paturzo as an independent contractor, seems however to be more consistent with the evidence, and has been more pressed upon the attention of this Court. A master is liable for the negligence of his servant engaged in his business, because he selects his servant and controls him. He should not be answerable for acts done by the servant of another, or by that other who is not subject to his control. Therefore, the owner of property, fixed or movable, for whose benefit a work about such property is to be accomplished, is not held answerable for the negligence of an independent contractor to whom he has committed the work, to be done without his control in its progress. (Habbit vs. The London and N. W. Railway Co. 4 Wels. H. & G. Ex. Rep. 254.) If tbe work involves the creation of a nuisance, owner and contractor become joint wrong-doers, and either or both must answer for consequences; but for private wrongs done by the contractor in the execution of the work, the contractor, and not the owner, must answer: both are not liable, neither jointly nor successively. Under this head the right of the public to go up and down the steeple at all times, day and night, with or without permission or guide, might, if established, show that a nuisance was produced by the opening of the trap-doors, which, if continued beyond the time required for a lawful work, became wrongful in the workmen who opened and left open these doors, and also in the owner who permitted them to do so. And under suitable allegations the owner might be made responsible for the misconduct or negligence of a contractor known to be unworthy of trust, to whom a work involving danger to others was entrusted. But independent of those matters, the question whether Paturzo was an independent contractor, is highly important in this case. Upon this question the instructions given to the jury seem to have held, that to make Paturzo an independent contractor, he should under his contract have had, at the time when the deceased fell, exclusive use and right over the place, not subject to any reservation of right in the defendants for performance of the duties of night steeplemen. The place here meant, we suppose, was the steeple. To make Paturzo an independent contractor, it was essential that he should have had such control of 'the place as was convenient for doing of the job which he undertook, and for such time as the doing of the job required; but rights in others, not inconsistent with this control, may well have subsisted along with it. If Paturzo was an independent contractor, the material inquiries were, what, by implication or otherwise, was made his d uty as to the closing of the trap-doors; and if he was guilty of no negligence, did the defendants neglect a duty incumbent upon them, either in not obtaining proper information of the dangerous condition in which the doors were left, or in not warning the deceased Conlin of the extraordinary risk to which he thereby was subjected.

A new trial is ordered, with leave for the plaintiff to amend.

DuNKIN, C. J., and Imglis, A. J., concurred.

Motion dismissed.  