
    John F. Tibbetts vs. Knox and Lincoln R. R. Co.
    
      Respondeat superior. R. S., c. 51, § 22. Damages — liability/or.
    A railroad corporation is not liable for injuries to buildings in tbe vicinity of its road caused by blasting done by those who have contracted to grade the road, or persons in their employ, although under the contract the corporation reserves the right to retain in its hands, sums sufficient to pay all damages that are not adjusted within thirty days from the time they are inflicted. Such a case is not within the provisions of E. S., c. 51, § 22.
    On exceptions.
    Case, brought under R. S., c. 51, § 22, to recover for injuries done to the plaintiff’s land and buildings by rocks thrown by blasts out of excavations made in the course of the construction of the defendant’s road-bed. The plaintiff suffered severely by having his roofs, doors, chimney and glass shattered, and his mowing land covered with the pieces thrown out of ledges near his residence in Woolwich, by the blasting done in the ordinary course of building the railroad, during the summer of 1870. The defence was that the company had contracted to have their work done and were not liable for any injuries resulting from an improper method of doing it, which was something beyond their control, as it was performed by sub-contractors.
    The cause was submitted to the presiding justice who ruled that the defendants were not liable, and the plaintiff excepted, that right having been reserved.
    
      Tallman <& Larrabee, for the plaintiff.
    
      
      Gould dé Moore, for the defendants.
   Yirgin, J.

Action founded on R. S., c. 51, § 22, to recover for injuries caused to the plaintiff’s land and buildings adjoining the defendant’s line of railway, by the blasting of rocks during the construction of the road-bed, in the season of 1870.

On March 20, 1869, one Hogan contracted with the defendants to construct and finish, in a substantial and workmanlike manner, the first five sections of their railroad. Among other numerous stipulations common to such instruments, not material to the determination of this case, were the following: “the work to be finished as described in the following specifications, and agreeably to the directions from time to time, of the engineer, on or before May 1, 1870, * * all damages from blasting to be paid by the contractor. * * And in case any damages shall occur to such premises [of landowner] through the wilfullness or carelessness of the contractor or his employees, and remain for thirty days unsettled by the contractor, the company shall have full right to retain in its hands out of moneys that may be due the contractor such sums as the chief engineer and committee of construction may think sufficient to pay said damages.”

On April 14, following, O’Donnell, Hinds and Morgan entered into a contract with Hogan to construct section five — this contract containing the same stipulations as the former.

•The parties submitted this case to the presiding judge, reserving the right to except in matters of law. The presiding judge found as matters of fact — That the work was being performed by the sub-contractors at the time of the injury complained of; and that the damage Was occasioned by the carelessness of the subcontractors. Thereupon he ruled, as matter of law, that the railroad corporation was not responsible; and ordered judgment for the defendants.

This ruling is in strict accordance with the law laid down by this court in Eaton v. E. & N. A. Railway Co., 59 Maine, 520; and the law there declared is the settled law of England, as well as of this country.

The stipulations relating to retaining money to pay damages are immaterial in the determination of this action.

Exceptions overruled.

Appleton, O. J., Cutting, Walton, Dickerson and Barrows, JJ., concurred.  