
    *Louis Samyn v. Patrick McClosky.
    If A contract -witk B to do tke carpenter-work of a building, at a fixed price, and to superintend tke other work on the building, employing the hands and certifying their bills to B, who pays them, and A is guilty of negligence in not sufficiently guarding a pit or vault, opened in the sidewalk of the premises on which the building is erected, B will be responsible for damage sustained by a person falling into the opening, in consequence of such negligence. Had the negligence been that of the carpenters, working under A, the rule of responsibility might have been different.
    Error to the court of common pleas of Hamilton county, reserved in the district court.
    The judgment sought to be reversed was one in favor of Patrick McClosky, in an action of case brought against Louis Samyn, to-recover damages for an injury sustained by the plaintiff in falling-into a pit or vault, left insufficiently guarded in a sidewalk in the city of Cincinnati, in the promises of plaintiff, whereon he was-erecting a house.
    There being no review of the testimony, on the question whether the verdict was against the weight of evidence, or whether plaintiff was in fault, in the opinion of the court which follows this statement it is not thought necessary to abstract any part of the evidence, save that which relates ’to the question whether Samyn was responsible for the negligence complained of.
    On this subject, the evidence was the following:
    The defendant called Wesley Cameron, who testified that he was employed by defendant to put up his house, in the summer of 1849. The witness says: “Defendant engaged me to put up the entire-.building, employ all the men, and indorse all their bills. I certified their bills, and he paid them. I engaged to do the carpenter-work at twenty-seven cents on the bill, and employ all the mechanics, etc. Mr. Samyn employed no one about the building. He gave me possession of the ground, and I was to keep it until the contract was executed—and went on to execute it.”
    In reference to the fence put up to guard the pit, the witness *says, that he directed the'men to put up the fence. He also says: “ Mr. Samyn was there once or twice a day, and gave me directions to keep everything safe—had nothing to do with the mechanics.”
    
      
      King & Anderson, for plaintiff in error.
    
      Todd & Lytle] for defendant in error.
   Tiiurman, J.

Upon tho testimony, it is our opinion that Cameron was a contractor for tho carpenter-work only, and that, as to the residue of tho work, ho was merely tho superintendent or agent of Samyn. We see no evidence that tends to prove tho contrary. In this view of the case, all the authorities agree that tho latter is liable. Had the injury resulted from negligence of tho carpenters in doing their work, tho case would bo very different; but resulting from tho carelessness of hands inSamyn’s employment, as we think they were, there is no disputed question of law involved. Tho so-called possession of' Cameron was as the agent of Samyn merely, or, rather, he occupied the premises as mechanics-usually do when making improvements. Digniiying a more license thus to occupy, by calling it a surrender of possession, wilL not serve to avoid responsibility.

Wo see no proof that the accident occurred through any negligence of McClosky, nor can we say that the verdict is clearly .against the weight of evidence.

Judgment affirmed.  