
    *James Carman et al. v. The Steubenville and Indiana Railroad Company.
    •A railroad company agreed with certain contractors for the construction of a part of their road. Amongst other work provided for, was that of removing, at a stipulated price, solid rock, which, it was said in the contract, “ must be removed by blasting.” In removing such rock, without carelessness on the part of the contractors, a large quantify of fragments was thrown, against the dwelling of an adjoining proprietor, causing an injury; for which he brought an action against the company.
    
      Held, that the maxim, respondeat superior, does not apply to the case of employer and contractor, where the latter executes an independent employment.
    But whether the owner of real property can escape liability, when such a contractor uses his property so as to become a nuisance to adjoining proprietors — quaere ?
    
    'That before a case can be made for the application of the principle expressed in this maxim, not only the relation of master and servant, must have existed, but it must appear that the servant, while in the business of the master, has done some act, or omitted some duty, neither directed norr authorized by the master, to the injury of a third person.
    In such case, the master, upon grounds of public policy, is liable for the negligence or carelessness of his servant.
    That, in this case, the contractors had done only what they were authorized by the company to do; and as the company must be held to have assented to-the unlawful act by which the plaintiffs were injured, it was liable as a joint-wrong-doer.
    Error to the court of common pleas of Jefferson county, reserved, in the district court of that county.
    The original action (on the case) was originally brought before a justice of the peace.
    The declaration alleges that plaintiffs are the owners of the premises ; that they were in the possession of their tenant at the time of the injury; and that defendants wrongfully blasted and threw large-quantities of rock, earth, and stones upon and *against the dwelling-house and fences, and broke and injured them. Plea,, general issue. -
    The bill of exceptions shows the proof to be as follows:
    “It was admitted that the plaintiffs held the legal title to the premises mentioned in the declaration, and that they were in the occupancy of one Dennis Connor, their tenant, at the time of the. injury complained of.
    “ That the defendant held the title in fee simple, by conveyance from the plaintiffs, to a strip of land adjoining that of the plaintiffs. above mentioned, on which it had located its railroad.
    “And the plaintiffs, further to maintain the issue on their part,, gave in evidence to the jury the original agreement between the. said defendant and Edward O’Sullivan — a printed copy of the rules and specifications therein referred to — and the original agreement between the said Edward O’Sullivan and Michael English, and. Michael Costello, with its indorsements; copies whereof are severally attached, and marked A, B, and C (see bill of exceptions for exhibits); and also gave evidence tending to prove that the said article of agreement between said English and Costello and O’Sullivan, and the several indorsements thereon, are in the handwriting of J. G-. Morris, the subscribing witness; that said J. G-. Morris then was, and ever since that time has been, the secretary of said railroad company. And that said original agreement last mentioned. has ever since that time been kept by him in the office of said railroad company.
    “ That after the making of the contract last mentioned, the said English and Costello proceeded to employ men to do the grading, bridging, etc., of said section No. 1 of said railroad, and were prosecuting said work under their contract. That the defendant bad ■paid to the said English and Costello several monthly estimates for work done on said section N,o. 1, including the excavation of the ;Solid rock hereinafter mentioned.
    “ That the said English and Costello, and the men in their employment, for the purposes of removing large masses of solid %ock -containing more than.one cubic yard each, which were lying on the ■line of said railroad, blasted them with powder, and thereby threw ■.a large quantity of fragments of rock upon and against a dwelling-.■house and fence situated on the premises of the plaintiff aforesaid, .being in the occupancy of said Connor as aforesaid, and broke and ■injured the said house and fences to the amount of $90; and offered no other testimony tending to show that the persons engaged in the blasting aforesaid, were the servants or agents of the defendant.”
    The defendant was incorporated February 24,1848, and is “ authorized to construct, by double or single track, a railroad from Steuben-ville,” etc. 46 Ohio Stat. 256.
    The contract of O’Sullivan with defendant, contains this provision :
    “ In the performance of the work required by their contract, and ■every part thereof, it is expressly agreed that the said party of the first part (O’Sullivan) shall conform to all instructions, in relation to the work, which may from time to time be received by said party from the chief engineer, or from any engineer having charge ■of the work, and shall, moreover, conform to all the ‘rules and specifications,’ established in relation to the construction of the road,” etc.
    “Bules and specifications,” page 7, provide, “ 6. The entire work on the road shall be done in a neat, substantial, and workmanlike manner, agreeably to lines, levels, marks, and plans established, or which may from time to time be established, by the engineer in iin charge of the road.”
    Page 2. “1. By solid rock, will be understood all rock found in masses containing more than one cubic yard, and which must be removed by blasting.”
    Page 9. “12. If any contractor, or any person in his employ, •shall at any time have performed, or be in the act of performing, any part of the work on his job, or under his contract, contrary to the ‘rules and specifications,’ established, or to instructions *given by the engineer, in relation to the manner of performing the work, any engineer shall have full authority to order all further prosecutions of said work to be stopped, which order the contractor or any person employed by him shall be bound to •obey.”
    Page 10. “ 16. All building-stone, or other materials obtained from tbe excavation, shall be considered the property of the railroad company.”
    The court of common pleas ordered a nonsuit, and this is the •error assigned.
    
      Miller & Sherrard, for plaintiff in error:
    The rule of respondeat superior applies. “ It is founded on the power which the superior has a right to exercise, and which, for the prevention of injuries to third persons, he is bound to exercise ■over the acts of his subordinates.” Blake v. Ferris, 1 Selden, 48 ; Milligan v. Wedge, 12 Adol. & El. 737; Lougher v. Pointer, 5 Barn. & Cres. 560; Quarman v. Burnett, 6 M. & W. 497; Rapson v. Cubitt, 9 M. & W. 70. The most that can be adversely claimed from these •cases is, that where a contract is made for the performance of a particular service, which is particularly specified, constituting what Blake v. Perris denominates an independent employment, the relation of master and servant does not arise, unless, by the terms of the contract, control over the person employed is reserved by the employer.
    If the right is founded, as stated in Blake v. Ferris, it follows, that if the defendant reserved the right to exercise such a power, its liability is fixed, whether any attempt to exercise it was ever made or not. In this argument it is assumed, that so far as this inquiry is concerned, English and Costello and their employees •stand in precisely the same situation as O’Sullivan and men employed by him would have done, without the contract between the latter and English and Costello, and that the contract between them amounted simply to an assignment by O’Sullivan to English *and Costello, with the consent of the company. The assent of the company to the substitution, arises from the facts in evidence, viz. :■ That their secretary wrote it; they always retained possession of it; they paid the monthly estimates to English and Costello, and evidently retained out of the three monthly estimates the fifty dollars, agreed to be left there for O’Sullivan. The original contract, and the rules and specifications are referred to, and control all the parties. (See sections 7, 8, 9,10,11,12, etc., of rules and specifications, and the provision of the contract, beginning, “ In the performance of this contract.”) The defendant reserved adequate-power, and the right to exercise it to prevent all injury to the plaintiffs.
    There is no reason why a railroad company shall be permitted-to fill the country with a set of irresponsible men, and by calling-them “ contractors,” claim to be exempt from liability for injuries, to those persons whose misfortune it would be, to have-a railroad located in their vicinity, when they themselves are unwilling to trust them in the performance of their contracts, but subject them to the control and direction of their engineers, constantly, and in every particular. They are not what the cases denominate “contractors,” while subject to the control and direction of the employer, but merely servants. (See report of a late Illinois case, Jan. No. of Livingston’s Law Mag. for 1854, page 53.)
    In Hobbitt v. N. W. Railway Co., 6 Railway Cases, 189, therm was no obligation to conform to such instructions as might from time to time be given by the engineer in charge; no right reserved to stop the further prosecution of the work in case such instructions were not complied with; no right to dismiss laborers for breach of discipline, which must be understood to embrace disobedience of the orders of the engineer in charge.
    The Steubenville and Indiana railroad company might, after ordering a locomotive of a given description, send its engineers into the manufactory to interfere with, and undertake to control, the-operations of the mechanics employed about the building of it, with the same propriety, as the Northwestern railway ^company, or its engineers, might interfere with the operations of the men in Crawshaw’s employ. Upon this point, which is the test, there is no analogy to the present case.
    In the case under consideration, the right to exercise this power-is expressly reserved; in Hobbitt’s case no such right existed.
    
      The point we make is not decided in Allen v. Hayward, 4 Railway Cases, 104. If the removal of the embankment had been, part of the work not particularly described and specified, but had. been executed in the manner directed by the surveyor, then the-decision would have been in point.
    In these cases, the defendants reserved no control whatever over the contractors in respect to the manner in which the work should be done.
    The effect such a reservation would have, is strongly intimated by C. T. Denman, in the latter case to be, that whatever the power-[control] is, there is the liability, but it was unnecessary to decide that point, as it did not arise in the case.
    These cases, obviously qualifying Bush v. Steinman, seem to establish the i’ule that under such circumstances, a party may be allowed to discharge himself from that legal intendment [of control]' by contract, and hence the liability of the party is not established, until it is shown that he had such control over the person who-committed the injury.
    In Blake v. Ferris, supra, this qualification of Bush v. Steinmanis acknowledged, and the judgment of the court rests upon the-proposition, that the defendant had no control whatever over Gibbons, the person who furnished materials and was constructing the sewer under a contract made with Butler, whereby he agreed to-furnish materials and construct in every respect according to the specifications of the street commissioners which were attached to-the agreement.
    The proof in the case at bar, bears no resemblance to that presented in the cases cited.
    Plaintiffs also refer the court to Hay v. The Cohoes Co., 2 Comst. 160 ; Tremain v. The same Co., Ib. 163 ; *as to the liability of the defendant generally, and as to the allegations and proof of negligence.
    
      Thomas Means, on the same §ide:
    I. If the company would have been liable for the acts of O’Sullivan, it would be liable for the acts of Costello and English. They wore in every sense his agents or servants, and the principle of respondeat superior would apply as between them. Story on Agency,, sec. 308 ; 1 Saund. Pl. & Ev. 349 ; 3 Kent, 290 ; Bush v. Steinman, 1 Bos. & Pul. 404; Randleson v. Murray, 8 Ad. & Ell. 109.
    
      II. The relations between the company and Costello and English were the same they would have been had not O’Sullivan intervened. The sub-contract was written by the secretary of the railroad company, was deposited in the railroad, office, and to Costello and English directly, as to those entitled to receive, the proceeds of their labor was paid. The contract of O’Sullivan was not canceled, so far as appears, but was retained, and he was held liable to secure its completion only.
    III. The defendant having been “ authorized to construct a railroad,” has no right to dispute that power, so as to escape responsibility for the consequences, resulting from its exercise. Clark v. Corporation of Washington, 12 Wheat. 40.
    IY. All corporations act by agencies, and can act in no other way. Those parties who are employed by the authorities of a corporation to do that which a corporation is authorized to do, are its agents. Such' “ agencies are composed of men, who may be influenced by reprehensible motives, or tempted to do acts not warranted by law.” “ If an individual is injured, it is right he should have redress against all upon whose account the injury was perpetrated.” Corporations have been held liable for “malicious acts.” Goodloe v. Cincinnati, 4 Ohio, 500.
    These principles apply to railroad companies. Stevens v. Little Miami R. R. Co., 20 Ohio, 415.
    *V. The language of Chief Justice Caldwell in the case last cited is a felicitous compendium of the whole law upon the subject.
    YI. Is there any “ good reason ”,why the case at bar should be “ taken without ” these principles ? The railroad company has done that which it is “ authorized” to do, by the only known means of doing it, i. e., by procuring individuals. It. has retained the most despotic control over them, in every stage of their progress, and in .all departments of their work. It has paid for and enjoyed the benefit of the very labor whose'results the plaintiffs have sought redress for. The plaintiffs have “ had no control or management of the thing that produced ” these results, but on the contrary, they were under the sole control and direction of the defendant. I apprehend that as a case of first impression, no difficulty could be experienced in deciding this question.
    VII. In the state of Vermont, the Supreme Court has decided in accordance with the foregoing principles, that a railroad contractor is %an agent of the corporation, in doing those things which the railroad company is “ authorized ” to do. Vermont Central Railroad Co. v. Baxter, 22 Vermont; 7 Washb. 365; also the Supreme Court of Illinois, in a case (Lesher v. Wabash Canal Co.) not yet reported, except in Livingston’s Law Magazine for the current year (January No.), p. 53. These cases recognize the relation of principal and agent, and master and servant, to exist between a corporation and a contractor, and apply i-n the particular cases, the rules of liability incident to these relations. Vid. also Semple v. London & Birm. R. W. Co., 1 R. W. Cases, 480. These cases fall directly within the purview of the principles enunciated in the cases of Stevens v. L. M. R. R. Co., and Clark v. Wash. City.
    VIII. It can not be claimed that the act here complained of is not the ordinary and direct result of that which the contractor was authorized to do. It is not a case of negligence, dut of ordinary necessity. The company is just as liable as though *they had ■ordered, and the contractors had bound themselves to make, an excavation by reason of which the house and fence had sunk or fallen in.
    IX. Is there anything in the character of the duties, obligations, or compensation of a contractor, so peculiar that he should not be regarded as an agent of his employer, as fully, and to all intents, as the engineer under whose direction, and superintendence, and control, he does his labor ? The name by which he is called, can not surely affect the relation, if it actually exist. Vid., 2 Exchequer, 415.
    ' X. Corporations have been held liable, on account of injuries resulting to innocent persons, by reason of the misconstruction of works done for their benefit, and at their expense, though executed by parties not under their appointment or control, on the ground that parties should not be permitted to set in motion a power, without being held responsible for its conduct and management. Bailey v. New York, 2 Denio, 433. The same principle has been applied to other cases. Bush v. Steinman, 1 Bos. & Pul. 404; Stone v. Cartwright, 6 Term, 411; Fletcher v. Braddick, 5 Bos. & Pul. 182 ; Rich v. Basterfield, 4 C. B. 783.
    XI. In cases where railroad companies have undertaken to do anything connected with the transportation of goods, and sub-let the porterage of the same by contract, they are held liable for the misconduct of all the persons employed, and the use of the names “ contractor,” “ snb-contractor,” or “ agent;” makes no difference.. Machu v. London & S. W. Railway Co., 2 Exchequer, 415.
    XII. The counsel of the company will rely, as they did in court below, on the case of Hobbitt v. N. W. Railway Co., 6 Railway Cases, 189; also, 4 Exchequer, 244, and of Allen v. Hayward, 4 Railway Cases, 104. These cases are distinguishable from the case at bar, and could have been decided, perhaps, without affecting its decision. It must be confessed, however, that the courts in deciding these cases, rest them upon principles, that do support the claim of the defendant in this case. They ^maintain the principle that a railroad contractor is in no sense the agent of the railroad company, and that to him alone must the sufferer look, in the event of injury. But after what has been decided in this state, and in the courts of other states, these cases will not be held to be law. They conflict with the cases cited from the Supreme Court of Yermont and of Illinois. They conflict with the case of Bailey v. New York, 2 Denio, 433, and overrule the very case, that of Bush v. Steinman, 1 Bos. & Pul. 404, upon which that case proceeds, and which is by it recognized as law. They are entirely adverse to every principle upon which the Supreme Court of this state rests-the decision in Stevens v. L. M. R. R. Co., in 20 Ohio.
    XIII. The whole body of the law as applied to corporations, has been much confused, arising from the ancient ideas of courts and parliaments concerning the character of.corporations. They were “ artificial persons,” and not real persons, and were said to have no souls. They could only act by common seal; being an “ invisible-body,” as Blackstonesays, “ it can not manifest its intention, by any personal act or oral discourse.” Comm. Bk. I., 475. It was questioned whether they could sue in assumpsit (1 Camp. 466), and; denied that they could be sued, in that form of action. One by one-these ideas have vanished, and slowly, but steadily, the laws that regulate the conduct of individuals, have been applied to them. They can incur liabilities by the same means as individuals, and are-equally liable with individuals on contracts, and for torts.
    XIY. An individual would, undoubtedly, have a right to construct a railroad on his own land. He would equally as well have the right to “remove rock by blasting.” But if injury resulted to adjoining proprietors, would he not be liable ? Hay v. Cohoes Co., 2 Com. 159. If so, could he, by farming out the job, “ contracting,” impose the liability upon “irresponsible” persons, and so effectu.-ally screen himself • behind the contract as to escape liability? Would not that be such a use of his own, *that would result in the injury of others, as the policy of the law forbids ?
    In this respect, there is no distinction to be taken in favor of a corporation. Railroad contractors are generally transient persons, .and often irresponsible when they are accessible. Their conduct is .regulated by these considerations. They are careless and often .reckless of the injuries they may commit in the course of their business. They are controlled and controllable only by the railroad company who employ them, who control their funds, who retain over them an almost unqualified restraint, and who can discharge .them altogether on the most frivolous pretexts.
    
      R. S. Moodey, for defendant in error:
    I. The question whether one is the servant of another, is a question that can only be decided by ascertaining and construing the •contract between them, if any such exists; and it will be found •upon a perusal of the authorities, which are almost all cited by the plaintiffs’ counsel, that the difficulty has been, with judges who have ■considered those cases, to determine if the contract created the relation of master and servant, or whether there was an independent •contract to perform work, by which the contractor was left at liberty to produce the result he had contracted for, by the use of .means which were left to his own discretion.
    On the one hand, the maxim qui faeit per odium facit per se applies, and the master will be held responsible for the negligence of his servant, as though it were his own act. On the other hand, the ■act of the contractor being one in respect to which he is independent, and which is, by his contract, placed beyond the control of the •other party, the contractor is responsible for it.
    Were not the contract in the present case before us, it would be easy to imagine a great variety of contracts by which labor was .agreed to be performed, where the contractor, in respect to some parts of its performance, would be so completely under the ^control and directions of another as to be a mere servant, while, in respect to the manner of executing other parts of the con■tract, he would be perfectly independent of his employer.
    In such case, the responsibility which a master will incur for the negligence of a servant would not be the rule to apply, if the negligence of the contract or was in the execution of a partof the contract where his discretion in the use of means was beyond the control of the other party to the contract.
    If, by the contract of the railroad company, the contractor might employ gunpowder at his discretion for the purpose of removing rock by blasting, without being controlled by the company, the contractor only is liable, because the injury complained of'is shown by the proof to consist of negligence in the use of the means employed to excavate the rock. It is the negligence of the company, if it was their act or the act of their servant; otherwise, it was the negligence of the contractor, and he only is responsible for it.
    By the contract between the company and their contractor, had the company the power to direct the contractor what means, or agents, or tools he should use to excavate rock ? By the contract, he is to receive a certain price per cubic yard for the excavation of solid rock. .
    There can be no doubt that upon such a contract, the contractor would have an “ independent employment,” and that he might excavate the rock in such a manner as he pleased. But it is claimed that there is a provision in this contract by which, in this and every other part of the contract, the contractor is absolutely subject to. all the directions which may be given him by the company.
    Following section 12 of the specifications quoted by Mr. Miller, section 13 provides: “In case the contractor shall neglect or refuse: to comply . . . with the instructions which may from time to time be given by the principal or assistant engineer in charge of the work, . . . the chief engineer *shall have full power to determine that his contract is forfeited and abandoned, and such determination shall absolve the railroad company from every obligation imposed on them as a party to the contract.”
    It is for the purposes of this case, claimed by Mr. Miller, that these “instructions” in relation to the manner of performing the work which the engineer may give, and which the contractor has agreed to obey, enable the company to determine what tools shall be used, by what kind of physical agency excavation, either of earth or rock, shall be made, and to give to the engineer the absolute power to choose even who shall be emplowed as laborers upon the work.
    It is a construction of the contract which makes the company supreme in everything; which makes the written agreement, in all-' its parts, saving perhaps the prices to be paid, a mere nullity. By such construction of the 11th, 12th, and 13th specifications, they are made to override the whole contract. The contractor has said by it: “I agree to excavate earth and rock, and build bridges and masonry for your con^any, at a certain price per cubic yard for earth, a certain price for stone, and for masonry, but you may direct me and control me in all the physical agents I may use in doing it.”
    If the engineer directs him to buy powder, he must buy it; to* provide carts and horses, they must be provided; or, if not provided according to directions, the company are to be absolved from every obligation imposed on them by the contract.
    The contractor is engaged in making a large excavation of earth, for which ho gets ten cents per yard. It has to be removed to an embankment half a mile distant, for which removal he receives, by his contract, ten cents per yard more. He is diligently engaged in removing the earth with horses, carts, and wagons. The engineer takes a whim that it shall be carried in wheelbarrows; he gives “ instructions ” accordingly. Or, a cut of solid rock is to be removed, for which the contractor is to ^receive fifty cents per cubic yard. He is able to do so at this price by blasting with powder. But the engineer gives him “ instructions ” that ,he shall remove the solid rock by picking with mattocks, or by splitting with wedges.
    Mr. Miller claims that all these instructions the contractor is bound to obey, on penalty of having his contract forfeited, and the railroad company absolved from every obligation imposed on them, as a party to the contract. This, it seems to me, is the test of his whole argument; for this branch of it goes upon the hypothesis that the engineer had the power to control the contractor in the use of powder to blast the rock; that this power made the contractor, in respect to this act, the servant of the company, and not independent in the choice of the means which he might use in effecting the result he had contracted for.
    I construe the power which is reserved in this contract by the company, differently. There are three phrases which the counsel has caused to bo printed in capital letters, lest they might bo overlooked : “ Instructions in relation to the work; ” “ Instructions given by the engineer in relation to the manner of performing the work;” “The contractor shall be bound to obey.” Upon these sentences hangs all the law. 1 do think that nothing but “ the extreme necessity of argumentation ” could ever have called from the learned counsel an opinion that these words would bear so unconscionable a construction as to make these contractors what he now seems to claim they are. It seems to me that sufficient meaning is given to them if they are held to reserve only that ordinary power which is usually reserved in all contracts with builders, or with railroad contractors — a power which is generally expressed in substantially the same language — and which has never had claimed for it that latitude of construction which is now given to it.
    When a house-builder takes a contract to build a house and furnish materials, a clause in the contract that he should obey all instructions of an architect in relation to the manner of performing *the work, would be understood by everybody to be a contract which made the architect an arbiter, to detei’mine whether the quality of material, or the style of the workmanship, was in conformity with the contract or its specifications.
    A similar power, and none other, is, as I think, the only one reserved in this contract by the railroad company. Their engineer is properly made the arbiter, by this contract, to decide between the company and the contractor, whether the manner in which the work is performed is in accordance with the contract; and to hold that this gave him a power to direct the particular instruments, or the means or agents which the contractor should employ to effect that result, would be as unreasonable as to suppose that the architect might direct and control the mechanical tools by which the house-builder should execute his design.
    In either case, if the result required by the architect or the engineer is attained, it is left to the contractor to choose his own means in effecting that result. This stipulation in the contract, signifies only that the contractor shall be controlled by the judgment of the engineer in any question of the manner in which the work is required, by the contract, to be performed. The difference is a distinction between the agency by which a particular manner or style of performance is attained, and the manner or style of work itself. The last the engineer may control: the first is left to the independent choice of the contractor.
   Ranney, J.

We have only to consider whether the evidence given by the plaintiffs, in any degree tended to prove all the facts necessary to support the action. If it did, the court below erred in taking it from the jury, and ordering a nonsuit. That they were entitled to recover of some one, a compensation for the injuries done to their property, is most unquestionable; and that the defendants are liable, if, under the same circumstances, a private individual would be, is now too well settled, and has been too often affirmed by this court, to require authorities to be cited, or reasons to be assigned.

*The plaintiffs and defendants were adjoining proprietors of real estate. While the business of blasting rock was being prosecuted, upon the defendant’s premises, for the purpose of constructing their road, a large quantity of fragments was thrown against a dwelling-house of the plaintiffs, by which it was injured. It appeared that this blasting was done by certain contractors, who had agreed with the company to construct this part of their road.

The plaintiffs insist, that the defendants are liable for the wrongful acts of these contractors, upon the principle respondeat superior, if not from the general obligations arising from the relation they •sustained to each other, because of the power of control reserved to the company by the terms of the agreement.

On the other hand, it is claimed that this principle has no application to the relation existing between an employer and independent contractor; and that nothing contained in this agreement •shows the relation to have been anything else.

Counsel, with much industry aud research, have presented us with the numerous cases, decided in the English and American •courts, bearing upon this subject. If the case depended upon the proper application of this principle, it might be attended with considerable difficulty. The late cases in both countries have made •it very plain, that there can be no liability where the relation of master and servant, or principal and agent, does not exist; and, consequently, none where the relation is that of employer and contractor. In the one ease, the principal selects the servant or agent with a view to his skill and care, and not only retains the -control over all his operations, but, also, has the power to dismiss ;him at any time for misconduct. In the other, the contractor assumes this position, leaving the employer no control over the work, or the persons by whom it is executed, but simply the right ■to require the thing produced, or the result attained, to be such as ■the contract has provided for. But, although as between the parties, the relation may be that of ^employer and contractor; still, if the employer retains the power of superintending the work, and directing it to be done in such manner as he sees fit, the decided weight of authority is, that it becomes his duty to see it done in a careful and skillful manner; and if he fails in this, he fails to perform his duty to third persons, and is liable for the injuries they may sustain. In general, however, it is certainly true, that the employer is not liable for the negligent or unskillful conduct of the contractor, or any one employed'by him, while executing an independent employment.

But after all this the question still remains, when does this maxim, and the limitation to its operation, cease to furnish the governing principle? A principle as old as civilization itself, and no less of morals than of law, requires of every one to so use his own property as not to injure others. This devolves upon every owner of real estate the affirmative duty of preventing it from becoming a nuisance to adjoining proprietors. Whether he can divest himself of this obligation consistently with the full operation of this important principle, while he retains the possession and control of the property, so as to escape liability when he suffers it to be occupied by a contractor who erects a nuisance upon it to the injury of others, is a question that I am very far from being prepared to answer in the affirmative. And so are the English courts. In most of the late cases decided in that country, questioning, and finally overruling to considerable extent, the early case of Bush v. Steinman, 1 Bos. & Pul. 404, followed by Sly v. Edgely, 6 Esp. 6, this distinction is alluded to, and most particularly and pointedly, by Park B. in Knight v. Fox, 5 Exch. 721; and by Rolfe B. in Reedie v. The London and Northwestern Railway Co., 4 Exch. 256; where he says, the liability of the owner in such case “must be founded on the principle that he has not taken due care to prevent the doing of acts which it was his duty to prevent, whether done by servants or others. If, for instance, a person occupying a house or a field should permit another to carry on there a noxious trade so as to *be a nuisance to the neighbors, it may be that he would be responsible, though the acts complained of were neither his acts nor those of his servants. He would have violated the rule of law, sic utere tuo ut alienum non Icedas.”

But it is quite unnecessary to pursue this view of the subject further, as it is evident that the in the maxim, respondeat superior, either in its larger or more restricted' sense, can have no application to the present case.

Before a case can be made calling for an application of that principle, it must appear, not only that the relation of master and servant existed, but that the servant, without the assent of the master, has-done some act, or omitted some duty, while executing the lawful commands of the master, to the injury of a third person. In such case, public policy and the safety of others require the master to warrant the fidelity and good conduct of the servant, and, although faultless himself, make him liable for the unlawful conduct of ther servant. But when the servant has done only that which the master commanded or permitted, the latter is chargeable as a joint participator in the wrong, and made liable for his own unlawful conduct, in the same manner as though no such relation had existed.. As was said by Erie, J., in Ellis v. The Sheffield Gas Consumers’ Co., 2 El. & Bl. 767, where the' relation was that of employer and contractor for the performance of illegal stipulations: “ The act of the person who is here called the contractor was the act done by him under the special directions of the defendants; and that appears to me to distinguish this case from those in which the employer was held not liable for the act done by the contractor, not in accordance with his contract.” A careful attention to the evidence given will show this case to have been of that character.

By the terms of the agreement between the company and the contractors, amongst other work to be performed by the latter, was-that of removing solid rock at a stipulated price per cubic yard. By the rules and specifications made a part of the contract, *« solid rock” is defined to be “all rock found in masses containing more than one cubic yard, and which must be removed by blasting.” And the bill of exceptions informs us that, in blasting “ for the purpose of removing large masses of solid rock, containing more than one cubic yard each,” fragments were thrown against the plaintiff's-house, causing the injuries complained of.

No proof was given that the work was not prosecuted with care and prudence, or that the injury was not the unavoidable consequence of blasting in that particular locality. Now, 'it seems very clear, that the contractors did nothing that the defendants had not authorized to be done. But the defendants had no right to use their own lands, or authorize others to use them, so as to interfere with-the undisturbed and lawful of lands-As said by the court in Hay v. The Cohoes Company, 2 Com. 159 : A man may prosecute such business as he chooses upon his premises, but he can not erect a nuisance to the annoyance of the adjoining proprietor, even for the purpose of a lawful trade. He may ■excavate a canal, but he can not cast the dirt pr stones upon the land of his neighbor, either by human agency or the force of gun-powder. If he can not construct the work without the adojotion of such means, he must abandon that mode of using his property, or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal object in an unlawful manner.”

We do not construe the agreement as absolutely binding the contractors to remove the rock in this particular manner. ^ They might, •undoubtedly, have adopted other and more exjDensive modes of doing it, without affording the defendants any cause of complaint. But nothing of that kind was contemplated. The defendants put •'them in possession, with the right to remove rock, wherever found, in the manner mentioned in the contract; and having enjoyed the benefits of this cheaper mode of doing the work, they can not escape the responsibilities attending it. If *they reserve no power to prevent injury, where blasting could not be safely employed, they were clearly in fault in giving so unrestricted a license. If they had the power, it is almost equally clear they should have •exerted it.

Being of the opinion that the evidence, given upon the trial, tended to prove the concurrence of the defendants in all the acts performed by the contractors; and believing the whole law of the ■case to resolve itself into the elementary proposition that whoever .aids, assists, or procures another to commit a trespass (no matter with what motive, or whether intended or not), is liable as a principal to compensate for the injury done, we are brought to the ■conclusion, that the court of common pleas erred in nonsuiting the plaintiffs, and for that cause the judgment is reversed, and the case ¡remanded for further proceedings.

Thurman, C. J., dissented.  