
    John F. Burke, Respondent, v. The City and County Contract Company, Appellant, Impleaded with New York. Westchester and Boston Railway Company, Defendant.
    Second Department,
    June 4, 1909.
    Contract — hiring of men—independent contractor — evidence — presumption—violation of ordinance — damages — negligence.
    Where one B. agreed to employ and work on the grading of a roadbed of a railroad, at such points and in such numbers as might be designated, certain workmen and to supply them with necessary tools, and further agreed 'that in no event, without special authorization, should the pay for said workmen exceed certain figures, and that he would give his personal attention to superintending the work and see that each of the employees gave an honest day’s work to the railway company, but he did not contract to do any of the work of constructing the roadbed, and the railroad company agreed to repay him the amount paid in wages and for materials, with ten per cent of such amount in addition, as compensation for his personal services, the relation between him and a company which assumed the contract on behalf of the railroad is that of employer and employee, and he is not to be considered as .an independent contractor so as to relieve the company from liability to a workman injured-in the construction of the roadbed.
    It is presumed that an ordinance duly adopted continues in force until the contrary is shown, and its violation is some evidence of negligence.
    A verdict for $9,000. for the loss of the use of a right arm and the breaking of three ribs, with the suffering which must have resulted, is not excessive for a man earning §4 a day.
    Appeal by the defendant, The City and County Contract Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of September, 1908, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office On the 28th day of September, 1908, denying the said defendant’s motion for a new trial made upon the minutes.
    
      George S. Graham [Ralph Polk-Buell and J. Tredwell Richards with him on the brief], for the appellant.
    
      Frederick W. Sparks [Roy C. Gasser with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff was concededly injured, his right arm being rendered useless, in the performance of manual labor, by being struck by a piece of rock blasted out in. the course of work in preparing the roadbed for the Rew York, Westchester and Boston Railway Company, the defendant company having had charge of the said blasting work. While the defendant upon this appeal insists that the evidence does not disclose- negligence on the part of the defendant, or evidence of lack of contributory negligence on the part of the plaintiff, the record shows that there was evidence which -the jury might find to support the plaintiff’s cause of action, and we are of the opinion that these questions were properly left to the jury for determination. ■

The ¡New York, Westchester and Boston Railway Company entered into a contract with one Smith for the construction and equipment of its road from One Hundred and Seventy-seventh street, in the borough of the Bronx, to Portchester, in Westchester county, for which Smith was to receive stock and bonds of the railroad. Smith assigned this contract to the apjiellant, and the latter assumed a contract which the engineer of the railway company had made with one Bivinae, but which is conceded to have been, in fact, made with Bivinae and Crawford. The construction of this contract presents one of the principal questions raised on this appeal, for if Bivinae and Crawford were independent contractors, as this term is understood in the law of negligence, then the defendant is not ■ liable to the plaintiff, while if they were merely agents or servants of the defendant, then, under the findings of the jury, the defendant must respond in damages. The contract has been construed by the court below as involving the defendant in liability, and- we are to determine if this, ruling is correct. The contract provides, aside from the formal parts, that “the said B. F. Bivinae agrees to employ and work on the grading of the roadbed of the said railroad at such points and in such numbers as may be designated by the Chief Engineer of the said railroad certain foremen, laborers, quarry men, teams, wagons, carts, etc., and supply them with the necessary tools, such as picks, shovels, axes, drills, hammers, etc., and that the rate of pay for the above shall be the lowest rate at which they can be obtained, and shall in no case exceed, without the special consent of the Chief Engineer of the Bailroad, the following rates: [Here follows a schedule of prices not necessary to be considered.] The said B. F. Bivinae further agrees to give his personal attention to superintending the work, and see that each of the employees gives an honest day’s work to' the Bail way Company, and to give every facility to the time keeper of the Bailway to take account of the force and check the payrolls.” What is it that Bivinae agrees to do ? He does not undertake to construct any roadbed for the railway company; he is under no obligation to construct a rod of roadway. His contract is to “ employ and work on the grading of the roadbed * * * at such points and in such numbers as itiay be designated . * * * certain foremen, laborers, quarrymen, teams, wagons, carts, etc., and supply them with the necessary tools,” and he agrees that in no event, without special authorization, shall the pay for the above exceed certain fixed figures. In addition to this, he agrees, not that he will do any work of constructing a roadbed, but that he will “ give his personal attention to superintending the . work, and see that each of the employees gives an honest day’s work to the Railway Company.” He is not contracting for the construction of the roadbed, but for the employment of such numbers of laborers, teams,, etc., as the: chief , engineer shall designate, and to s personally see to .it that the laborers, teams, etc., give the railway company a fair day’s work. Is there anything to this agreement on the part of Rivinac more than a personal employment to gather up a working crew and to furnish them with light tools within certain limitations as to price ? Has he anything to do with the work of constructing the roadbed independent of the chief engineer? But let us see what the railway company agrees to do on its part. The contract continues: “For the faithful performance in the above by the Contractor, the Hew York, Westchester and Boston Railway Company agrees to refund to the. said R. F. Rivinac the amount paid in wages to the above-mentioned employees, and the amount paid by the said R. F. Rivinac for any material used in the grading of the said.railway which may be authorized by the Chief Engineer, together with ten per cent additional to the' amount of said pay rolls and bills, as a compensation for the personal services of the said- R. F. Rivinac and. for the tools furnished by him.” That is, for the faithful performance of the agreement to “ employ and work on the grading of the roadbed,” such laborers and teams as the chief engineer shall designate, the railway company undertakes to pay, not the agreed maximum figure, but such amount as Rivinac shall have paid in wages to the above-mentioned employees, and the amount paid for materials .used in the grading,, which may be authorized by the chief engineer, together with ten per cent upon the amounts so expended1, as personal compensation for services and use of tools. Hot a man or a team is to be ■employed except such as shall be desigpated by the chief engineer; íiot a dollar in wages or for materials is to be refunded or. paid to Rivinac, except such as may be authorized to be made use .of by the chief engineer, and yet we are asked to hold that this simple contract for organizing and superintending a working force, under the direction of the railway company’s chief engineer, constitutes Rivinac and his associate independent contractors in the construction of this roadbed, which l-elieves the defendant, as successor to the railway company under the contract, from liability to the plaintiff as a servant of the defendant. We cannot so hold; it is not the fair and reasonable construction of.the agreement. Rivinac was simply contracting, to bring together a working force to be used under the direction of the railway company, through its chief engineer, relying for his compensation upon a percentage of the wages, etc., to be paid to thes.e workmen, and his agreement to “ start the work promptly when notified by the Chief Engineer ” was merely an agreement to begin the work of organizing this force upon demand, and this makes clear the further provision that “ the agreement may be terminated at any time on ten days’ written notice.” The fact that Rivinac is termed a contractor in the agreement does not extend the contract to cover matters clearly outside of its scope; it is quite common for men to make these percentage contracts, particularly since the modern influx of foreign laborers, who require a superintendent speaking their language, and they are generally-referred to as contractors, without any one supposing that they are independent contractors upon the work which is in progress. Rivinac was probably an independent contractor under the definition laid down in Sullivan v. Dunham (35 App. Div. 342; 161 N. Y. 290), in so far as the bringing together of a working crew was concerned, but he had no relation whatever to the work of constructing the roadbed ; that was, by the terms of the contract, intrusted entirely to the chief engineer of the railroad, who determined the number to be employed, the place where they were to work, the materials to be purchased and the wages which were to become due. This made the defendant liable, as the master, for the manner in which the work of constructing the roadbed was performed.

The only other question necessary to consider is the introduction in evidence of section 62 of the ordinances of the city of Hew York. The offer of this section was. pbjected to, as appellant tells us in his main brief, on the ground that it was not properly shown that it was in effect at the time of the accident. The plaintiff produced one Sullivan, journal clerk of the board of aldermen, who had with him “ the general ordinances in reference to explosives of Hew York City,” and he testified that he had, in such ordinances, the ordinance in effect' at the- time of the accident; that he had a certified copy of a book published by authority of the board of aider-men and that the book showed when it took effect, and that the ordinances contained in the book were passed, as a whole, in December, 1903, and upon cross-examination he clearly showed that the ordinance was adopted in December, 1903, and that it had not been changed since. This would probably be the presumption ; it being shown that the ordinance was duly adopted - and in force in 1903, it would be presumed to continue in force until the contrary was shown, and the presumption is strengthened by the testimony of the witness. In his reply brief the defendant’s counsel urges various other objections to the ordinance being received in evidence, but the particular objection which was called to the attention of the trial court, and which was relied upon on the appeal, being without force, it is too late to urge other objections; these must be deemed to have been waived. The violation of an ordinance is some evidence of negligence, and the matter was properly submitted to the jury. In this case the ordinance indicates what is a proper precaution to take in blasting; it suggests a rule or method which has , been found in practice to be proper in dealing with high explosives in blasting, and it was proper for the jury to have the same before them in considering the question of defendant’s negligence.'

We do not think the verdict of $9,000 for the loss of the use-of a right arm, the breaking of three ribs and the suffering which must . have resulted excessive for a man who had been earning four-dollars per day, and we do not think the learned trial court- erred in refusing the defendant’s requests to charge upon the question of damages.

The judgment and order appealed from should be affirmed, with costs. ,

Jenks,- Bubb and Millee, JJ., concurred; Gaynoe, J., concurred in separate memorandum. .

Gaynor, J.

(concurring):

I concur, but not in the statement that the violation of the ordinance was “ some evidence of negligence ”. It was the evidence, and sufficient evidence, of -negligence. Its violation caused the injury. The piece of rock could, not have got away if the ordinance had been obeyed. The phrase is misleading and inapplicable. If an injury happens from a violation of an ordinance or a statute obligation, it is the same as if it happened from a violation of a common law obligation. The violation is no more “ some evidence of negligence ” in the one case than in the other. This ordinance required a prescribed, cover over the blast which would prevent the flying pieces of rock, and it was not furnished and used.

Judgment and order unanimously affirmed, with costs. ,  