
    John B. Clark v. George Fry.
    1. The right of transit in the use of the public highways is subject to such incidental, temporary or partial obstructions as manifest necessity requires; and among these, are the temporary impediments necessarily occasioned in the building and repair of houses on lots fronting upon the streets of a city, and in the construction of sewers, cellar drains, etc. These are not invasions, but qualifications of the right of transit on the public highway; and the limitation on them is, that they must not be unnecessarily and unreasonably interposed or prolonged.
    2. Such temporary obstructions upon the highway, when guarded with due care to prevent danger to the public, and not unnecessarily extended or continued, are not nuisances, and do not require a license from the municipal authority to legalize them; although suitable regulations by the city authorities, requiring such obstructions to be properly guarded, and to prevent them from being made in an improper manner, or continued unreasonably, are usual and highly proper.
    
      3. A city ordinance, imposing, in general terms, a penalty on any person for incumbering or obstructing, any part of any street, lane or alley, etc., rationally construed, has manifest reference to nuisances — in other words, to incumbrances, or obstructions, which, but for some special license, would, be unlawful.
    
      4. The rule of respondeat superior, as its terms import, only arises out of the relation of superior and subordinate, is applicable to that relation wherever it exists, as between principal and agent, or master and servant, is co-extensive with it, and ceases when that relation ceases to exist; and the reason of it is to be traced to the power of control and direction, which the superior has a right to exercise, and which, for the safety of others, he is bound to exercise over the acts of his subordinates.
    5. This rule of liability does not apply in case of an injury sustained by reason of negligence in the manner of conducting the execution of a job of work in building a house, where the house builder, by a contract with the owner of a lot, has taken upon himself the responsibility of the employment of his own hands, and the control and direction of the work in conformity with the terms of the contract.
    6. Where anything to be done under the contract is in itself mlawful, or necessarily injurious to a third person, the employer as well as the employee would be liable for any injury resulting therefrom; but where this is not the case, and the employer has not the control or direction in the execution of the work, he is not responsible for any negligence or other wrongful act committed in the performance of it.
    7. Where, however, the rule of respondeat superior does apply, the action cannot be maintained jointly against the principal and the agent, the former, in case of recovery against him, having a right of action against the latter for his loss resulting from the wrongful act.
    8. Where, however, the owner of real estate willfully suffers a nuisance to be created, or to be continued, by another, on or adjacent to his premises, in the prosecution of a business for his benefit, when he has the power to prevent or abate the nuisance, he would be liable for an injury resulting therefrom to a third person.
    This is a petition in error to reverse1 the judgment of the District Court of Lucas county.
    The original action was brought by George Ery, the defendant in error, against John B. Clark, the plaintiff in error, and one Milton G. Freeman, to recover damages occasioned by the fall of Fry into an excavation made in Summit street, in the city of Toledo, in front of a lot owned by Clark.
    The petition is as follows:
    
      “ George Fry, plaintiff, says that John B. Clark, defendant, before and on the 16th day of May, 1854, was the possessor and occupier of a certain messuage and premises, situate in the city of Toledo, in the said county of Lucas, and near to, and abutting upon, Summit street; and which said street, at the time aforesaid, and from thence hitherto, has been, and still is, a common public street and highway in said city, for all persons to go, pass and repass upon, and that before the day and year aforesaid, and while the said street was a "public highway as aforesaid, the said John B. Clark and Milton G. Freeman, defendants, had caused to be dug into said street, and into and across the sidewalk on the side thereof, a certain hole opening into a certain cellar of and belonging to the said messuage and premises, and permitted the said hole to continue up to and after the day and year aforesaid, without any proper or sufficient covering or guard over or around it to protect passengers along said street and sidewalk from falling into the said hole; and the same was then and there so badly and insufficiently covered, guarded and protected, that the plaintiff, who was then and there passing along the said street and sidewalk, unavoidably stepped and fell into said hole, and thereby the right shoulder and arm of the plaintiff were fractured, dislocated and otherwise injured, and the plaintiff thereby became and was sick, disabled, disordered and diseased, and has so remained and continued up to this time, during all which time the plaintiff has suffered and endured great pain and suffering, and has been prevented from attending to and transacting his usual and necessary business, and has been obliged to pay and lay out large sums of money in and about attempting to be cured of his said injuries, which are yet uncured, and are of such a nature as to render his right arm crippled for the remainder of his life.”
    To this petition Clark answered, that he was not the possessor or occupier of the premises in question at the time of the alleged accident; that he did not cause said hole to he dug, or permit the same to continue without any proper or sufficient covering or guard over or around it, to protect passengers along said street or sidewalk from falling into it; that said hole was not so hadly or insufficiently covered, guarded or protected, that the plaintiff unavoidably fell into the same, and that the injury complained of did not occur to the plaintiff by reason of any fault or neglect of him, the said Clark. He further says, that from the 80th day of March, A. D. 1854, until the first day of April of the same year, he was the occupier and possessor of the said premises, but on the last mentioned day he delivered to Ereeman the full occupancy, possession and control of said premises; that Ereeman on that day took possession and commenced erecting a building thereon ; that said Ereeman had the full occupancy, possession and control of the same until the 10th day of September, A. D. 1855, during which time the said Clark did not, nor could, by reason of said possession and control of Ereeman, claim or exercise any control of or over the same, nor did he in any manner, enjoy or have the possession of the same; that said hole, in the petition referred to, was not dug into said street, or across said sidewalk, but that it was dug by Ereeman, from said building about six feet, and into the sidewalk, but not into that part thereof which before, or at the time, had been or was used by said city, or the public, for sidewalk purposes, but that the walk which then was, and before that time had been, accustomed to be used by the people passing and repassing on and along said sidewalk, was not encroached upon by said excavation. He further says, that said hole was not left with an insufficient guard or protection, but was sufficiently guarded and protected, and that the defendant fell into said hole by his own negligence.
    ■ The answer of Ereeman admits his occupancy of the premises, but in all other respects is substantially the same as that of Clark.
    
      On the trial in the common pleas, judgment was rendered on a verdict in favor of Ereeman and against Clark. Erom this judgment Clark alone appealed.
    In the district court it was held that the appeal only brought up the case as against Clark, and that the judgment of the common pleas in favor of Ereeman still remained.
    A bill of exceptions was taken on the trial in the district court, which is as follows:
    “ Be it remembered, that on the trial of this cause to the jury, the plaintiff, to maintain the issue on his part, offered evidence tending to prove, and claimed he had proved, that the defendant caused to be excavated a cellar on a certain lot in the city of Toledo, fronting on Summit street, in said city, and an area connected therewith, in front of said cellar, and in said street, and which was about seven feet deep, and that the plaintiff, in attempting to pass along said street in the night, fell into said excavation for said area, without any fault of his own, and was injured thereby.
    “ The plaintiff' also gave in evidence, two ordinances of said city of Toledo, which remained in force, copies whereof are hereunto annexed, and made part hereof, marked respectively “ A ” and “ B,” and proved by the mayor of said city, that no license had ever been granted to the defendant, Clark, under said ordinance “ A,” to make said excavation. He also proved that said excavation was made by Milton G-. Ereeman, under a contract with said defendant Clark, a copy of which is annexed and made part hereof, marked “ C.” The plaintiff also offered testimony to prove, and claimed he had proved, that the excavation extended into the street, which was a thoroughfare much frequented, between seven and eight feet, and up to the time that the plaintiff' fell into the same, it had never been guarded sufficiently to prevent passengers on the street from falling into the same, and that it was a very bad and dangerous place, and that the sidewalk on the side from which the plaintiff approached the hole when he fell in, extended entirely up to the buildings on the street, the space between the plank laid by the city, having been put down by the occuapnts of the lots.
    “ Plaintiff also offered testimony tending to prove that one Albert G-. Clark was the authorized agent of the plaintiff', to superintend fob him the construction of the building, and that he was very frequently about the place, and saw the excavation; that said Albert G-. Clark exercised a control over the work, directing in what manner it should be done, and changing the contract, both by parol and in writing, and that the said agent had full knowledge of the danger of the hole, and had been threatened with prosecution therefor, by the officers of the city.
    “ Defendant then moved the court to direct that the plaintiff become nonsuit, because of his having improperly joined said Freeman and Clark in this action in the common pleas, which motion the court'refused to grant, and to that refusal said Clark excepted.
    “ The defendant then, to maintain the issue on his part, gave evidence to the jury tending to prove, and claimed, he had proved, that said Summit street, opposite said cellar, was eighty feet in width; that on each side of said street, a space had been reserved by said city for sidewalk purposes, sixteen feet in width, leaving forty-eight feet for a carriage way and gutters; that along said space reserved for a sidewalk, and in front of said lot and its vicinity, said city had caused a plank sidewalk, six feet in width, to be constructed, the side of which, nearest to said lot, was about eight feet from said lot, and that the excavation for the area, in front of said cellar, was about six feet in width, extending along the whole front of said lot, which was twenty feet, and six or seven feet in depth.
    “ That the excavation for said area was made by one Edward Connelly, under a sub-contract from said Freeman, and that at the time of the injury complained of, one. Daniel T. Howell had possession of said work, under a contract with said Freeman, by which Howell was to furnish the materials for, and construct all the masonry for said building and area; that after said excavation was completed, and before the injury complained of, said Freeman had built around said excavation, without encroachment upon said plank sidewalk, a good and substantial fence, sufficient to protect passengers along said sidewalk from injuries by said excavation; that said fence was examined by the chairman of the committee on streets, in the council of said city, and declared to be sufficient; that on the evening previous to the injury complained of, when the workmen employed in the excavation of said building left said work, said fence was up and in good condition, but that afterwards, during the night, by the interference of unknown wrong-doers, or in consequence of a heavy rain, or of both, the banks of said excavation were caved in, and said fence thrown down, and that neither said defendant Clark, nor any person connected with the work, had any notice of this occurrence until the next morning, and that while the fence remained in this condition, during the night, the plaintiff, in passing along, received 'the injury complained of; that from the time Freeman took possession of the work, some six weeks before the injury happened, until the building was completed, some three months after the injury, as the building covered the whole front of said lot, that Clark did not possess or occupy, and could not control any part of said premises, and that neither the defendant nor said Albert Q-. Clark had, or attempted, any control over the manner of doing the work, but that said Albert G-. Clark only acted for the defendant in making his payments, under his contract, and in accepting or rejecting the work, as being in compliance or non-compliance with said contract.”
    Upon these facts, so claimed to have been proved by the* defendant, said Clark having rested his case, by his counsel, moved the court to charge the jury as follows:
    
      1st. That as the petition does not allege or claim that the excavation in the street in front of defendant’s premises was unlaioful, but only charges wrong on the ground that the defendant was guilty of negligence in not keeping up a proper fence or guard around said excavation, the jury must treat the excavation under this petition as lawful; and if the defendant did not stand in such a relation to the work as to be guilty of negligence in omitting to put up, or keep up the guard or fence, then the plaintiff cannot recover.
    2d. That the defendant, as the owner or occupier of the lot in question, had the right, when his contract was made with Ereeman, to excavate and construct the area in the street, provided for in his contract, if it did not unreasonably interfere with the public travel, and the obstruction caused thereby was not continued for an unreasonable length of time.
    3d. That if the jury find, from the evidence, that the defendant Clark had let the work of constructing, the building and area in question, to the defendant, Ereeman, who was to do all of the work and furnish all of the materials on his own credit, and with his own men and his own means, and had sub-let the excavation to one man, and the masonry to another, and that defendant Clark, while the work was in progress, had no possession or occupancy of the premises, and had no control of the mode or manner in which Ereeman should do the work, other than to accept or reject the work, as being in compliance or noncompliance with the contract; that then the defendant Clark is not responsible for any injury resulting to the plaintiff in consequence of the negligence of Ereeman or any of his sub-contractors, or his or their employees, in not guarding the area with a proper fence.
    5th. That the defendant cannot be made liable simply because he contracted with Ereeman to build the area, unless it was impossible to do it in such a manner as not to make it a nuisance.
    
      6th. That the person or persons in charge of such work were not bound to adopt the strictest means to prevent injury to third persons, but were only required to use such care in guarding the area as a reasonable man looking at it in the ordinary course of things, would say was sufficient; and if the persons so in charge took care, on leaving the work at night, to see that the fence around the area was up and in a secure condition, and the fence so left was afterwards thrown down or removed by the action of the elements, or the act of a wrong-doer, then neither defendant Clark, nor the persons so in charge would be liable.
    7th. That if the jury find from the evidence that Clark had let the entire work under an independent contract to said Freeman, and neither retained nor exercised any control over the work in its progress, except to exact a performance of his contract, and the injury complained of by the plaintiff resulted from the negligence of Freeman or his sub-contractors, or his or their men, then the defendant Clark was improperly joined with Freeman in this action, and the jury must find for the defendant.
    All of which charges were refused by the court; but the court did, among other things, instruct the jury that, as the defendant had shown no license or authority from the authorities of the city of Toledo, or State of Ohio, to make such an excavation in the street in front of his lot, such excavation was unlawful, and being unlawful, the defendant would be liable for any damages which accrued by reason thereof to the plaintiff', when he was not himself in fault, although the work was done by said Freeman, under a contract with said Clark, entered into for that purpose; that if the work had been done by Freeman, on Clark’s own premises, under a contract, Clark would not have been liable for any injury that had occurred, but as it had been done in the street, and not under authority of law, Clark was liable, notwithstanding the work was done by Freeman under a contract; that, as the work was done in the street, and was in itself unlawful, if the jury should find that it was protected by a fence, it did not excuse the defendant; that the plaintiff, however, could not recover if the injury was caused by his own want of care and prudence, and that if there was a fence around the excavation, it should be considered by the jury, not as constituting a complete defense, but as a circumstance to be considered in determining whether the plaintiff had exercised ordinary care and prudence to avoid the injury, and also as a mitigating circumstance in estimating the damages.
    To which refusal to charge as requested, and to the charge as made, said defendant. Clark, in due time, excepted; and the jury having returned a verdict for the plaintiff, said defendant moved the court to set aside said verdict and grant a new trial for the following causes:
    Because the court erred in charging the jury that the digging of the pit for the area, in front of the defendant’s building, was unlawful, the defendant having shown no license or authority from the city authorities, or the State of Ohio, permitting him to make such excavation.
    Because the court erred in refusing to charge the jury as requested by the defendant.
    Which motion the court refused to grant.
    “A.”
    
      “An Ordinance to prevent the obstruction of streets and other purposes.
    
    
      - “ Section 1. Be it ordained and enacted by the Mayor and Council of the city of Toledo, That if any person shall incumber or obstruct any part of any street, lane or alley, now opened and established, or hereafter to be opened and established, any wharf, dock, slip, basin or other places intended for public uses in the city of Toledo, with any article or thing whatsoever, without having first obtained authority from the city council, or a written permission for a limited period, on good cause, from the mayor; every person so offending shall forfeit and pay for every such offense, a penalty of not less than one, or more than fifty dollars, in the discretion of the mayor, with costs of suit, to be prosecuted for, and recovered in the manner pointed out in the 24th section of the city charter; and a further penalty of not less than one, or more than fifty dollars, shall be incurred by such person, for each and every day such incumbrance or obstruction shall continue, after such person shall have twenty-four hours notice, in writing, from the mayor, street commissioner, or an alderman, to remove the same, in the manner aforesaid.”
    
      “B.”
    
      “An Ordinance to provide far guarding cellar stairways and excavations.
    
    Section 1. Be it ordained by the Council of the city of Toledo, That all cellar stairways that project into any of the streets, and all excavations for cellars or drains, or for other purposes, made in or near the line of any of the streets of the city, shall be guarded by a good and sufficient railing. Every owner or occupant of any lot, who shall neglect to provide such railing, shall forfeit and pay the sum of five dollars for each and every violation thereof; and the further sum of five dollars for every twenty-four hours that he shall neglect to comply with the same, after being notified by the marshal, city engineer, or road supervisor ; to be recovered before the mayor.”
    “C.”
    “ Contract referred to in the foregoing hill of exceptions.
    
    
      “ Articles of agreement entered into this first day of April, A. D. eighteen hundred and fifty-four, between Milton G. Freeman of the first part, and John B. Clark, by his agent, A. G. Clark, of the second part, witnesseth: That the said party of the first part, for, and in consideration of the covenants and agreements on the part of the party of the second part hereinafter mentioned, does hereby covenant and agree to build and construct on the upper one-third of lot fourteen (14,) in the Port Lawrence Division of Toledo, a brick store building, according to the specifications for said building, hereunto attached, and which are a part of this contract; furnishing all materials and labor necessary for the full and entire completion of the building, according to said specifications; the work to be done in a good mechanical and workmanlike manner, and to furnish such materials as are specified, and where the quality of the same is not designated, they are to be of good quality, such as are suitable for, and should be put into such a building. The building is to be completed by, or before the first day of August next. And the said party of the first part also hereby agrees, that the party of the second part may retain a stipulated damages for the non-completion of the building at the times specified, out of the contract price for the building, the sum of five dollars for each and every day which shall elapse after the said first of August, before the building is fully completed.”
    “And the said John B. Clark, the party of the second part, in consideration of the full and complete performance of each and every covenant and agreément on the part of the party of the first part hereinbefore mentioned, does hereby covenant and agree to pay to the party of the first part, over and above the sum of twenty-five cents per cubic yard, for the excavation of the basement and drain, when the same is done, the sum of twenty-five hundred and twenty-five dollars, as follows: Four hundred dollars when the joists for the floor of the first story are laid and drain completed, and the walls of the area in front constructed; eight hundred dollars when the entire walls for the building are up ; four hundred dollars when the floors are all laid and the roof is on; four hundred dollars when the entire basement and first story are completed; and the balance when the entire building is completed.
    (Signed) “ M. G. FREEMAN,
    “ JOHN B. CLARK,
    “ Per A. G. Claiík, his Ag’t.”
    
      
      Copy of so much of the specifications, referred to in the hill of exceptions, as are important to the decision of the cause.
    
    “ The wall for basement is to .be built of good foundation stone for such a building, the wall being two feet at the bottom, and of same thickness, until above bottom of basement, for the joists of basement floor; and from thence, above the level of the ground around, full twenty inches in thickness, with an area in front six by twenty feet, built of stone, and the walls of the same thickness as that of the basement, said area having a brick wall across the same one foot in thickness. Down into said area there is to be a passage way, leading into the basement, with suitable steps, made of white oak. Over the area in front shall be put a good wood grating.
    “ The ground for the basement and drain shall be excavated, all surplus earth being moved from the lot; the drain, after the plank are put down, shall be filled up, and all planks in sidewalk and street, removed for the construction of the same, shall be replaced as they now are. This building is to be constructed, the walls of the building on the southwesterly side being used as far as it will answer; but where it is not of sufficient height or depth for this building, suitable walls are to be constructed.”
    
      M. JR. $• JR. Wcdte, and ITill f Pratt, for plaintiff in error.
    Tbe leading error in tbe court below, and tbe one wbicb lies at tbe foundation of all we complain of, is found in that portion of tbe charge to tbe jury wbicb reads as follows, to wit: “ Tbat, as tbe defendant bad shown no license or authority, from tbe authorities of the city of Toledo or State of Ohio, to make such an excavation in the street in front of bis lot, such, excavation was unlawful; and, being unlawful, tbe defendant Clark was liable for any damage wbicb occurred, by reason thereof, to tbe plaintiff, when be (tbe plaintiff) was not himself in fault, although tbe work was done by Ereeman, under a contract with Clark, entered into for tbat purpose.”
    This ruling is erroneous.
    1. At common law, owners of lots in a city may encroach upon tbe street adjoining, and occupy it, partially and temporarily, for tbe purpose of improving their lots, provided it be done in a reasonable manner, and not continued for an unreasonable length of time. Commonwealth v. Passmore, 1 Serg. & R. Rep. 217; The People v. Cunningham, 1 Denio Rep. 524; Rex v. Jones, 3 Camp. Rep. 231.
    
      The work to be done in the street, under the provisions of this contract, would not necessarily be an unreasonable obstruction, and thus need not be a nuisance. Rex v. Jones, 13 Eng. Com. Law Rep. 96; Bush v. Steinman, 1 Bos. & Pull. 404.
    2. The city ordinances do not make the construction of the area unlawful. The obstruction contemplated by the ordinance must be one that, but for the license, would be unlawful.
    Even if the excavation, without a license, would be unlawful under the ordinance, still Clark is not liable. The contract being for the performance of a work not necessarily unlawful, Clark is not necessarily liable. Carman v. S. & I. R. R. Co., 4 Ohio St. Rep. 399.
    The presumption is, if a thing can be lawfully done, it will be so done.
    3. If the work to be done, under the contract with Freeman, was not necessarily and of itself unlawful, Clark cannot be made liable for injuries resulting from its negligent performance, unless he himself interfered with, and controlled the work, as it progressed.
    The case of Bush v. Steinman, 1 Bos. & Pull. 404, which seems to favor a contrary doctrine, has been oftentimes overruled, and, in fact, is said never to have been the law. Blake v. Ferris, 1 Seld. Rep. 63, and cases there cited; Hobitt v. London & N. W. Railway Co., 4 Exch. Rep. 254.
    In Carman v. S. & I. R. R. Co., 4 Ohio St. Rep. 399, this court substantially recognizes the principle for which we contend. See Overton v. Freeman, 8 Eng. Law & Eq. Rep. 479; Peachy v. Rowland et al., 16 Eng. Law & Eq. Rep. 44.
    ¥e admit that Clark had no right to use his lot himself, or authorize others to use it, so as to create a nuisance in the street; but if he parts with the possession to another, for a lawful purpose, and that other is guilty of illegal acts on the premises while thus in possession, Clark is not liable unless he himself is in some way directly connected therewith. While out of his possession, and out of his control, it is not Ms property, within the meaning of the maxim, Sic utere tuo ut alienum non Icedas.
    
    4. The action, as made in the petition, does not proceed upon the ground that the original excavation was unlawful, but that the same, after it was made, was permitted to remain without any sufficient or proper protection against accident.
    The claim, then, is not that the original excavation was a nuisance, but that it was improperly protected, and because it was improperly protected the defendants are liable.
    5. Clark and Ereeman were improperly joined as defendants. Parsons v. Winchell, 5 Cush. Rep. 592.
    6. As this misjoinder was first disclosed by the evidence, a nonsuit was proper. Cooper v. Whitehouse, 25 Eng. Com. Law Rep. 535.
    
      Bassett $ Kent, for defendant in error.
    The words of the petition charging the digging and continuing the hole, taken together, describe a nuisance. As to what a nuisance is, see Bla. Comm. 215, 218; 4 lb. 167; Jacob’s Law Diet., Art. Nuisance. In a petition describing a nuisance, as defined at common law, it was unnecessary to allege that it was unlawfully made or continued.
    This, also, disposes of the fifth and sixth points of the argument for the plaintiff in error, for if the petition describes a nuisance, it is not a misjoinder to charge two jointly with making it. This is not a case of the master’s liability for the negligence of his servant, as between Ereeman and Clark, and therefore the case of Parsons v. Winchell, 5 Cush. Rep. 592, has no application.
    As to the first proposition of the argument for plain tiff in error, in the words that the learned counsel have seen fit to state their proposition, it may perhaps not be necessary in this case to deny that it contains, in the abstract, a correct enunciation of a principle of law. But the real question is something quite different from the abstract statement of the general principle. Hoes the law permit the owners of lots in a city to encroach upon the street adjoining, for the purpose of improving their lots, if by such encroachment they create not merely an inconvenience to the public using the street, but, as in this case, a nuisance absolutely endangering the life and limb of every passenger along the street after night-fall ?
    The authorities quoted do not sustain the proposition, that a dangerous hole in the street is justifiable, even if it is necessary to make it for the purpose of building.
    We submit, that no private necessity will justify a dangerous place in a much-frequented thoroughfare in a city.
    To justify an individual in the use of a highway, the occupation must be for some purpose that benefits the public. Rex v. Russell, 13 Eng. Com. Law Rep. 254.
    The plaintiff contracted for what was unlawful, under the ordinances of the city — to have an area made in the sidewalk, “ without having first obtained authority from the city council, or a written permission, on good cause, from the mayor.”
    An owner of real estate has no right to so part with the control of it as to suffer a nuisance to be created upon it, without being liable for the nuisance.
    This we hold to be the weight of authority of the American and English cases, from the much-discussed Bush v. Steinman, down to the present day. And, so far, Bush v. Steinman has never been overruled, although a wrong reason was given for a correct decision, which has caused some severe animadversion upon the case.
    This view is fully recognized by the very cases that are quoted as overruling this case, especially Quarman v. Burnett, 6 M. & W. 497; Rapson v. Cubitt, 9 M. &. W. 709; Milligan v. Wedge, 12 Adol. & Ellis 737. And Reedie v. Northwestern Railway Company, 4 Welsb., Hurst. & Gordon 244, cannot be treated as overruling this principle.
    
      In Bailey v. The Mayor of New York, 2 Denio’s Rep. 434, (3 Hill’s Rep. 531,) this rule is distinctly sustained.
    Again, Clark was liable, because the excavation Freeman made was in accordance with the contract with Clark.
    This case comes within Carman v. S. & I. R. R. Co., 4 Ohio St. Rep. 399, 415.
   Bartley, C. J.

The first inquiry presented in the determination of this case is, whether the excavation extending into the street, in front of the lot of the plaintiff in error, was in itself unlawful, even although guarded by a sufficient fence. The district court instructed the jury, “ that, as the defendant had shown no license from the authorities of the city of Toledo, or the State of Ohio, to make such an excavation in the street, the same was unlawful; and being unlawful, the defendant, Clark, was liable for any damage which occurred by reason thereof to the plaintiff, if the latter was not himself in fault.” Did the district court err in giving this instruction ?

The right of the public in the use of a highway, is the right of transit to every person who has occasion so to use it. This right is, however, subject to such incidental and temporary, or partial obstructions as manifest necessity may require. Even the use of a highway, for mere transit by one part of the public, may, at the time of a multitude upon it, oppose a temporary obstruction to the passage of another part of the public. A company of persons stopping and standing on the pavement of a street, or persons stopping in the street with their wagons or carriages, for mere temporary purposes of business, interpose impediments to the free 'and uninterrupted transit upon a public highway. The delivery of freight, and every variety of goods, fuel, etc., at business and other houses, on a street, is a necessary incident to the use of the public highway. And the repair or improvement of streets, and the deposit of the materials for the same, often create obstructions to the uninterrupted transit by the public. So, also, the improvement, or building, or repair of houses, and the construction of sewers and cellar drains, on adjacent lots, often create necessary temporary impediments upon public highways. These are not invasions of, but simply incidents to, or rather qualifications of, the right of transit; and the limitation upon them is, that they must not be unnecessarily and unreasonably interposed or prolonged. In Commonwealth v. Passmore, 1 Serg. & Rawle Rep. 217, the supreme court of Pennsylvania said on this subject: “It is true, that necessity justifies actions which would otherwise be nuisances. It is true, also, that this necessity need not be absolute, it is enough if it be reasonable. No man has a right to throw wood or stones into the street at pleasure. But inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other materials, may be placed in the street, provided it be done in the most convenient manner.” The same doctrine was adopted by the court of appeals in New York in The People v. Cunningham, 1 Denio 524. And it appears to be a doctrine of general recognition in England as well as in this country. Rex v. Jones, 3 Camp. Rep. 231. In Rex v. Ward, 4 Ad. & El. Rep. 405, Lord Denman, in speaking of a hoard erected for repairing a house, said: “ That the hoard is placed for the safety of those possessing the right of way; it protects them from inevitable danger if it leaves them a free passage, and leads them another way if the whole street is necessarily obstructed. Every way to which houses adjoin, must be considered as set out, subject to these occasionable interruptions, which resemble the temporary acts of loading coals in keels, alluded to in Rex v. Russell, 6 B. & C. Rep. 566.”

These incidental and temporary encroachments on the highway, however, must be necessary and reasonable. And if they be extended further into the street, or continued longer than is necessary and reasonable, or if negligently left in an unsafe and improper condition, they become nuisances, and are liable to be abated. And for the protection of the streets of a city from improper and unreasonable encroachments of this kind, the city authorities usually provide salutary and convenient regulations.

On the trial of this cause, therefore, in the district court, the questions arose: first, whether the excavation in controversy made in the street, was necessary and proper in the construction of the building, or making the improvement, undertaken on the lot of the plaintiff in error; and, if so, secondly, whether due care was taken to guard it by a railing or fence, with a view to secure persons passing the street from danger. And these were questions of fact for submission to the jury under proper instructions. The district court, however, did not submit these inquiries to the jury, but proceeded on the ground that the excavation was necessarily unlawful, unless authorized by a special license, either from the authorities of the city of Toledo, or from the State of Ohio; and, consequently, that nothing could relieve either the owner of the lot, or the contractor, from liability from any damages that might accrue by reason of the excavation, to any party not in fault himself.

The state never grants a license for any such purpose as this; and if the excavation was one of those incidental encroachments on the street which become necessary in the improvement of the lot fronting upon it, and was properly guarded, and not continued an unreasonable length of time, it was not a nuisance, and a license from the city authorities to legalize it was not requisite. The district court appears to have acted upon the idea that the excavation was malum prohibitum by virtue of the ordinance of the city given in evidence, imposing a penalty on any person for incumbering or obstructing any part of any street, lane or alley, etc. This ordinance rationally construed, has manifest reference to nuisances; in other words, to incumbrances and obstructions which, but for the license, would be unlawful. It is not reasonable to suppose, that the city authority required that every man who allowed his horses and wagon to stand upon the street, while attending to the necessary demands of his business, and that every merchant who unloads a dray load of goods on the sidewalk, for the purpose of passing them into his store, should obtain a special license therefor. Such obstructions as result from a law of necessity, and are incident to the use of a highway, cannot be properly made penal offenses. Resides, the other ordinance given in evidence, by direct implication authorizes such excavations, by providing that, “ they shall be protected by a good and sufficient fence,” etc., and making the omission to provide such protection, a penal offense. It is not very reasonable to suppose that the city authority would, in one ordinance, make it a penal offense to omit to fence that which was absolutely prohibited under a penalty in another ordinance, if not specially licensed. Construing these ordinances together, and with reference to their reasonable and manifest intent, it is clear that the ordinance first alluded to has reference to those obstructions in the public highway, which are nuisances, and not those occasional impediments incident to the nature of a highway, and arising upon the law of necessity.

The district court, therefore, erred in the instructions given to the jury, as well in the refusal to instruct the jury as requested, as in the instruction given.

Again, it is insisted that the district court erred in the refusal to instruct the jury, that as the work to be done under the contract with Ereeman was not necessary, and of itself unlawful, Clark cannot be made liable for injuries resulting from its negligent performance, unless he himself intei’fered with, and controlled the work as it progressed.

As the excavation was an act pertaining to the construction of a building on a lot fronting upon the street, if necessary and proper, it was not necessarily or intrinsically unlawful; and whether it became unlawful, depended on whether it was extended to an unnecessary or unreasonable extent into the street; or whether it was made in an improper and dangerous manner; or whether, through negligence, it was left insufficiently guarded by a fence, or allowed to continue an unreasonable length of time. And these were questions of fact to be determined by the jury upon the evidence in the case. But whether the liability to the defendant in error, if any existed, attached to Freeman alone, or to Clark for the negligence of his servant or agent, or to Clark and Freeman, as joint tort feasors., depended upon a legal question arising upon the relation between Clark and Freeman in respect to the transaction alleged as the occasion of the injury. If the excavation had been ipso facto unlawful as an unnecessary incroachment on the street, Clark and Freeman would have been liable, if any liability existed, jointly, as wrong-doers. But if there was nothing in the work that Clark had required by the contract to he done which was in itself unlawful, or which, properly done, could be the occasion of an injury to any one; and Freeman, wholly free from the control of Clark as to the manner of doing the work, had, by his own wrongful and negligent conduct, been the cause of the injury, he alone would be liable. If, however, Freeman, acting under the control and direction of Clark, as his servant or agent, had negligently and wrongfully allowed the excavation to he in an unfenced or otherwise dangerous condition, whereby the injury was sustained, Clark would be liable, although not jointly, with Freeman. In this last instance supposed, either Clark or Freeman might he sued separately; but inasmuch as Clark, although he could not excuse himself on the ground that the nuisance had been occasioned by the negligence of Freeman, would have a right of action against Freeman for the recovery of such damages as he might be compelled to pay by reason of his negligence, he (Clark) could not be joined in the same action with Freeman. This doctrine was expressly ruled in Parsons v. Winchell, 5 Cush. Rep. 592; and it appears to rest upon a reason which is entirely satisfactory. The inquiry, therefore, arose in this case, whether the injury was caused by reason of the negligence or want of due care on the part of Ereeman to protect and guard the excavation by a fence or other sufficient means; and if so, whether by means of Ereeman’s neglect Clark became liable. The former was a question of fact for the determination of the jury, the latter a question of law which has much perplexed courts of justice both in England and in this country.

Where the relation of master and servant, or that of principal and agent, exists, there is no difficulty in ascertaining the rule of liability, and the ground upon which it rests, in case of an injury done by the servant or agent while in the exercise of his employment. The liability of the master to answer for the conduct of his servant, or that of the principal for the conduct of his agent, is founded on the superintendence and control which the master is supposed to exercise over his servant, or the principal over his agent. 1 Bla. Com. 431. By the civil law, that liability was confined to the person standing in the relation of paterfamilias to the person doing the injury. And although by the common law, the rule of liability has been extended to cases where the agent is not a mere domestic, yet the principle and the reason upon which it rests is the same. This rule of respondeat superior, as its terms import, arises out of the relation of superior and subordinate, is applicable to that relation wherever it exists, whether between principal and agent or master and servant, and is co-extensive with it, and ceases where the relation itself ceases to exist. It is founded on the power of control and direction which the superior has a right to exercise, and which, for the safety of other persons, he is bound to exercise over the acts of his subordinates, and in strict analogy to the liability ex contractu upon the maxim quifacitper aliumfaeitper se. The direct coincidence and coexistence of the rule of respondeat superior with, the relation to which it belongs, is an unvarying test of its application. Quarman v. Burnett et al., 6 M. and W. 497.

Had Clark employed hands to work at the building of his house under his own superintendence, control and direction, the workmen would have been bound to follow his direction in reference to every part of the work; he would have been, in fact, master of the persons under his employ, and he would have been undeniably liable for any injury which any third person might have received through the carelessness of any of the workmen in doing the work. But Clark did not so undertake to build his house. He let out by contract the building of the house to Freeman, who undertook to furnish the materials, make the excavation, build the walls of the foundation, put up the building, and complete the work, replacing the plank removed from the side walk, etc., within a specified time, and in a specified manner, and for a stipulated compensation. There is nothing in the terms of the contract which created the relation of superior and subordinate, by placing Freeman under the superintendence and direction of Clark in the prosecution of the work. By the terms of the contract, Freeman occupied the position of a contractor, selecting and employing his own subordinates, etc., undertaking, upon his own responsibility, to conduct, direct and control the performance of the work, in conformity with the terms of the contract. Now, in the mode and manner of conducting the work under the contract, and in the selection and employment and directing of the hands, in the performance of the work, the contract clearly does not create the relation of superior and subordinate as between Clark and Freeman, or place the latter under the power and control of the former. "When a person is engaged in doing a job or piece of work under an employment or contract which does not create the relation of mere principal and agent, or master and servant, but which leaves to the contractor the free and independent use of his own skill, judgment, means and servants in the execution of it, upon what principle can the employer be made liable for any injury occasioned to a third party by reason of the negligence of the contractor or any of his subordinates ? It is clearly not upon the principle of respondeat superior.

It is true that some of the earlier English decisions, as well as some of the adjudications .in this country, have carried the doctrine of the liability of the employer, or principal contractor, far beyond that arising out of the relation of superior and subordinate; but this course of adjudication, which appears to have started with the case of Bush v. Steinman, 1 Bos. & Pull. 404, does not appear to rest on any fixed and definite, or just and satisfactory principle.

The case of Bush v. Steinman was an action on the case, against the defendant, for causing a quantity of lime to be placed on the highway, by means of which the plaintiff and his wife, who were riding in a chaise, were overturned and much hurt, and the chaise damaged. The facts were as follows: The defendant, having purchased a house by the roadside (but which he had never occupied), contracted with a surveyor to put it into repair for a stipulated sum. A carpenter, having a contract under the surveyor to do the whole business, employed a bricklayer under him, and he again contracted for a quantity of lime with a lime-burner, by whose servant the lime in question was laid in the road. The Lord Chief Justice was of opinion, that the defendant was not answerable for the injury sustained by the plaintiff, under these circumstances; but in order to save expense in taking the question further, a verdict was taken for the plaintiff, Avith liberty to the defendant to move to have a nonsuit entered. The motion was made before Eyre, chief justice, and Heath and Rook, justices, and denied, as it was said, with the concurrence of Mr. Justice Buffer. And the chief justice, in delivering the opinion of the court, clearly intimating his hesitation and doubt in the decision, says; “ The relation between master and servant, as commonly exemplified in actions brought against the master, is not sufficient to support the action; and the general proposition, that a person shall be answerable for any injury which arises in carrying into execution that which he has employed another to do, seems to be too large and loose.” And although he confesses his difficulty in stating any precise and definite principle on which the action was founded, yet he concurred with the other judges in sustaining it. This decision is said to have been followed, in a few instances, in England, but in the more recent and well-considered adjudications, it has been directly and distinctly overruled. In Quarman v. Burnett et al., 6 M. & W. 497 (Exch. Rep.), and again, in Rapson v. Cubitt, 9 Ibid. 709, the generaldoctrine of the case was denied, with the remark, that it might, perhaps, be sustained in a restricted application to injuries, occasioned by the negligent management of fixed real property. In Reedie v. London & Northwestem Railway Company, 4 Exch. Rep. 244, the distinction attempted, between the liability of the owner of fixed and the owner of moveable property, is shown to be without foundation; and Baron Rolf, in delivering the opinion of the court, after alluding to the attempted distinction mentioned, said: “ According to the modern decisions, Bush v. Steinman must he taken not to he law, or, at all events, that it cannot be supported on the ground on which the judgment of the court proceeded.” In accordance with this doctrine, is the case of Overton v. Freeman, 8 Eng. Law & Eq. Rep. 479, in which the court said: “ The defendants, not personally interfering and giving directions, but contracting with third persons to do a legal act, are not responsible for an illegal act done in performance of such contract. It might be otherwise, if the thing contracted to be done were itself illegal. In this case the defendants contracted to have stones laid down in the pavement, but do not appear to have contracted to have the stones laid in the manner which caused the injury.”

So, in Peachy v. Rowland et al., 16 Eng. Law & Eq. Rep. 44, the defendants had contracted with A. to fill in the earth over a drain, which was being made for them across a portion of the highway, from their house to the common sewer. The work was so negligently done as to constitute a public nuisance, and an action was brought against the defendants to recover damages, by a person who had sustained an injury in consequence. Maulé, J., says: “ The evidence is, that Ansell had contracted to fill the earth, and employed men under him. But even assuming that he was their servant, was there no other way in which he could perform their orders but by putting the earth so as to create a nuisance ? You must show that the defendants could have been indicted for obstructing the highway. If the thing which they ordered to be done might have been done in a perfectly innocent and proper manner, they are not liable. It would be a different question, if it could only have been done in such way as to involve a criminal act.” And again he says: “ Now, here there was a public wrong, and the question is, Bid they employ Ansell to do the work in the special manner in which he did it; did they order him to commit a nuisance?”

To the same effect is Knight v. Fox, 5 Exch. Rep. 721, and many other more recent decisions in England. And the ground of these decisions seems to be, that the subcontractor, in such ease, is not the servant of the principal contractor, or employer; and if the latter does not take upon himself any control, or personal interference with the execution of the work, he cannot stand in the position of a tort-feasor, for the acts of persons not done under his control and direction.

It appears that, in Massachusetts, the doctrine of Bush v. Steinman has been followed to the full extent, in numerous decisions — Gray v. The Portland Bank, 3 Mass. Rep. 385; Stone v. Godman, 15 Pick. Rep. 297; Lowell v. Boston and Lowell R. R. Co., 23 Pick. Rep. 24 — but somewhat modified in the case of Elder v. Bemis, 2 Metc. Rep. 599.

In the case of Black v. Ferris, 1 Seld. Rep. 49, the subject was very fully reviewed by the court of appeals of New York, and the doctrine of the recent English decisions adopted. In this case it was held, that the liability of the employer for injuries occasioned by the negligence or improper conduct of an employee, in the execution of a lawful undertaking, could only arise where the employment created the relation of superior and subordinate; that the immediate employer of the agent or servant, through whose negligence an injury occurs, is the person responsible for the negligence of,such agent or servant; and that there cannot be two superiors severally responsible in such case.

It is very true, if the owner of real estate should willfully allow a nuisance to he created, or to be continued by another on, or adjacent to his premises, in the prosecution of a business for his benefit and under his authority, when he had full power to prevent or abate the nuisance, he would be justly liable for any injury which might result therefrom to another person. Here the owner would be in the actual wrong, in willfully suffering the continuance of the nuisance, upon the maxim, “ Sic utere tuo ut alienum non Icedas.”

Judgment of the district court reversed, and cause remanded for further proceedings.

Swan, Brinkerhopp, Scott and Sutlipp, JJ., concurred.  