
    Hexamer v. Webb.
    
      (Court of Appeals,
    
      Filed February 9, 1886.)
    
    1. Negligence—Owner not liable for negligence of contractor—Relation OF MASTER AND SERVANT ABSOLUTELY ESSENTIAL TO CREATE LIABILITY OF OWNER.
    Where one B. undertook to repair cornice of defendant’s hotel, the manner and means to be employed being left entirely to the former; and so negligently prepared his scaffold, that in a high wind a plank fell and in jured plaintiff - Held, that the dismissal of the complaint, on the trial on the ground that the defendant was not* liable for negligence of B., as he was a contractor and not an employe, is not error.
    3. Same—Effect of absence of price or specifications.
    The fact that no price was fixed and no specifications were made, as to the work to be done, did not render the contract one of mere hire and • service, or create the relation of muster and servant between the parties.
    3. Same—Nuisance—What does not constitute.
    When a scaffold is suspended against a building- divided from the street by an area of fifteen feet, it cannot be regarded as such an obstruction to the street as to constitute a nuisance.
    4. Same—City ordinance prohibiting'hanging of goods, etc.
    Such a scaffold is a mere temporary structure, erected for the purpose of repairing the building, and does not fall within the prohibition of a city ordinance forbidding the hanging out of goods, wares, and merchandise, etc
    
      I T. Williams, for appellant.
    
      George S. Hamlin, for respondent
   Miller, J

This action was brought by the plaintiff to recover damages alleged to have been sustained by means of the negligence of defendant’s agents and servants" in making repairs and improvements upon the hotel of the defendant, situated in the city of New York. The alleged negligence consisted in fixing and securing the staging used in performing the work, and the proof showed that the ladder, used as a scaffold, was suspended from the roof, over the eaves of the hotel, and upon it were placed planks which were used as a platform upon which the workmen employed stood to do the work. This scaffold was moved from túne to time, around the bay windows from place to place. A heavy wind was blowing, and, while shifting the ladder, a gust came, and the working of the wind and the grating against the cornice and wall cut the rope which held the planks on the ladder, and the wind turned the planks up so that they fell, and one of them, in falling to the sidewalk, bounded and struck the plaintiff. One Burford, who was engaged in the roofing and cornice business, was employed by the defendant to do the work, which was .intended to obviate a difficulty caused by pigeons making their nests under the eaves of the roof of the hotel. At the close of the testimony, a motion was made to dismiss the complaint, upon the ground, among others, that if there was proof of negligence it was not the negligence of the defendant, or his agents or servants, but of an independent contractor; and the plaintiff’s counsel then asked to go to the jury upon several grounds, which were stated and refused, and the motion to dismiss the complaint was granted, and the defendant’s counsel excepted to the decision of the court.

The employment of Burford was of a general character, and the contract between him and the defendant was not restricted as to time or amount, or the specific services which were to be rendered. The accident occurred while Burford and his men were engaged in the performance of this work, and this action was sought to be maintained upon the ground that the workmen employed, mchiding Burford, were the servants of the defendant, and that the defendant, as owner of the real estate, was responsible to third persons for the carelessness, negligence, or want of skill in those who were carrying on or conducting the business; and this whether the persons employed - were working for wages or on contract. We think that the principle laid down has no application to the facts presented in the case at bar. As a general rule, where a person is employed to perform certain kind of work, in the nature of repairs or improvements to a building, by the owner thereof, which requires the exercise of skill and judgment as a mechanic, the execution of which is left entirely to his discretion, with no restriction as to its exercise, and no hmitation as to the authority conferred in respect to the same, and no provision is especially made as to the time in which the work is to be done, or as to the payment for the services rendered, and the compensation is dependent upon the value thereof, such person does-not occupy the relation of a servant under the control of the master, but he is an independent contractor, and the owner is not liable for his acts or the acts of his workmen who are negligent, and the cause of injury to another. If the owner of a building employs a mechanic to make repairs upon the .same, without any specific arrrangement as to terms and conditions, such employment is in thé nature of an independent •contract, which imposes upon the employe the responsibility incurred by acts of negligence caused by himself, or tliose who are aiding him in the performance of the work. It is absolutely essential, in order to establish a liability against a party for the negligence of others, that the relation of master and servant should exist.

In King v. New York Cent. and H. R. R. Co. (66 N. Y., 184), the rule applicable to such a case is laid down by Andrews, J.. as follows:

“It is not enough, in order to establish the liability of one person for the negligence of another, to show that the ■person whose negligence caused the injury was, at the time, acting under an employment by the person who is sought to be charged. It must be shown, in addition, that the employment created the relation of master and servant between them. Unless the relation of master and servant ■exists, the law will not impute to one person the negligent act of another.”

In the case considered we think that, by the contract between the defendant and Burford, the relation of master and servant was not created.. Burford was a mechanic, engaged in a particular kind of business, which qualified him for the performance of the work which he was employed to do. By the arrangement with the defendant, he was an independent contractor, engaged to perform the work in question. He was employed to accomplish a particular object by obviating the difficulty which he sought to remove. The mode and manner in which it was to be done, and the means to be employed in its accomplishment, were left entirely to his skill and judgment. Everything connected with the work was wholly under his direction and control. No right was reserved to the defendant to interfere with Burford or the conduct of the work. It was the result which was to be attained that was provided for Jby the contract, without any particular method or means ‘by which it was to be accomplished. So long as the contractor did the work, the defendant had no right to interfere with his way of doing it. The fact that no price was fixed, and no specifications made as to the work to be done, did not render the contract one of mere hire and service, or create the relation of master and servant' between the parties. It •cannot, we think, be said that Burford did not agree to do the work required of him, and that no contract was made, because, after the subject-matter had been considered and talked about, and the difEculties attending the work, Bur-ford said he would try and do something, and the defendant replied he did not care how he did it. The conversation had amounted in law to an agreement that Burford would perform all the work that was required of him, according to his own judgment as to what was necessary to be done to accomplish the object intended. He was an independent contractor, and the men employed by him were his servants, and had nothing to do with the defendant. Burford was not the agent of the defendant, in any sense, in purchasing the material, or in hiring the men to do the work. That the work was charged for by the day could make no difference, and did not alter the position which Burford occupied, in reference to the defendant, as an independent contractor. It did not give the defendant control over the job, or authority to hire or discharge the men, or render him in any way liable to them instead of Burford. It is very evident that the men employed were the servants of Burford, and therefore the defendant cannot be made responsible for their negligence. The test to determine whether one who renders service to another does so as a contractor or not is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. Shear & B. Meg., §76.

In Blake v. Ferris (5 N. Y., 68), within the rule last stated, it is held that when a man is employed in doing a job or piece of work with his own men, and employs others to help him or to execute the work for him, and under his control, he is,the superior who is responsible for their conduct, no matter for whom he is doing the work. To attempt to make the primary principal or employer responsible in such cases would be an attempt to push the doctrine of respondeat superior beyond the reason on which it is founded. Upon these authorities, there would seem to be no question as to the character of Burford’s employment.

We are referred by the learned counsel for the appellant to numerous authorities as upholding the doctrine that Bur-ford was not engaged in an independent employment, and that the defendant was therefore hable. After a careful examination, we are satisfied that none of them sustain this position. Those cited from this state are certainly in a contrary direction. The other cases cited are clearly distinguishable from the case at bar, and establish no rule adverse to that which is supported, as we have seen, by the authorities in this state.

The claim that the ladder or scaffold suspended under the eaves of the hotel was a nuisance, is not well founded. The proof on the trial did not show that the building was on the line of the street. It did show that the hotel was separated from the sidewalk by an area of fifteen feet. Without further proof, it is difficult to see how the ladder or staging could be regarded as such an obstruction to the street as to constitute a nuisance. The action is based upon the ground of negligence, and there is nothing in the complaint alleging that the scaffold was suspended over the sidewalk, or was in any respect an obstruction to the street. The gist of the action is negligence and unskillfulness in the construction of the scaffolding. It may be added that the scaffold itself' was suspended for a legitimate purpose, connected with the reparation and improvement of the building. It was not necessarily injurious and dangerous, or an obstruction on the street; and, if properly used, might well be employed for the purpose intended. It could only become dangerous by being improperly constructed, or by some wrongful and willful act. In view of all the facts, it cannot, we think, be maintained that the scaffold necessarily was a nuisance.

The claim that the ladder was suspended in violation of the city ordinance is not well founded. The ordinance referred to prohibits the hanging of any goods, wares, or merchandise, or any other thing, in front of any building at a greater distance than one foot. The ordinance was aimed against the obstruction of the streets. It is not apparent that the ladder overhung the street; but, even if such was the case, it was a mere temporary structure, erected for the purpose of repairing the building, and not an obstruction within the meaning and spirit of the ordinance, which it is manifest was directed against goods, etc., which were exposed for sale, or for the purpose of attracting public attention thereto. The construction contended for would prevent the use of scaffolds in the reparation of buildings, which never could have been intended.

It is also insisted that the work in question was intrinsically dangerous, and hence the party authorizing it would be hable, whether he did the work himself or let it out on contract. The answer to this position is that the work itself was not necessarily injurious or dangerous. It was merely necessary repairs or improvements for the-benefit of the building, which, under ordinary circumstances, could be made without any serious results. The accident was caused by a gust of wind, which might well occur in the performance of any work of a similar character, and which could not well be guarded against or provided for. The act itself could only become dangerous and cause-injury by some unforseen circumstance, and the rule stated is not applicable.

There is, we think, no force in the position that the injury complained of was the result of an act absolutely necessary for the contractor to do in order to accomplish the desired end, and the suspending of the ladder may therefore be said to have been done by the defendant, and he is liable, although it was done by an independent contractor. It is apparent, from the evidence, that the injury resulted, not from anything contracted for by the defendant, but something collateral thereto. The defendant’s contract related to the improvement of the building alone. What was necessary to be done for that purpose, and the manner in which it" should be done, rested with the skill and judgment of the contractor. The defendant was absent at the tune, and had no knowledge of what was done, or the manner in which it was done. The doing of the work, and the mode in which it was to be accomplished, were matters collateral to the contract between the defendant and Burford. For these the defendant could not be held responsible.

After a careful consideration of the questions presented, it follows that no error was committed by the judge m dismissing the complaint, or in his refusal to allow the case to go the jury; nor did tie err, upon the trial, in striking out the testimony given as to ttie declaration of one of the witnesses sworn upon the trial.

The judgment should be affirmed.

All concur.  