
    Callahan v. The Burlington & Missouri River Railroad Company.
    1. Master and servant¡ railroad company: respondeat superior. The rule or maxim respondeat superior is limited by this principle: The responsibility of the master grows out of, is measured by, begins and ends with, his control of the servant. If the master, who is sought to be charged with the wrongful act of another, did not contract with him for his labor or services, and is not liable to him for compensation therefor and has no such control over him as will enable him to direct the manner of performing the labor, he is not liable.
    2. -application op the principle. In action against a railroad company for damages growing out of the wrongful act of an employee, the petition alleged that the defendant contracted with "W. & Co. for the grading of its road, reserving to itself the right of giving directions as to how it should be performed; that W. & Co. sub-let the work to F.; that one of the specifications of the contract between defendant and W. & Co. provided that the ground should be cleared of all perishable materials, which were to be removed or burned as the engineer of the defendant might dweet; that in the progress of the work, an engineer of defendant ordered an employee of F., the sub-contractor, to set fire to and burn-some rubbish that was on the line of grading, which was done by said employee, but in so negligent a manner that he permitted the fire to escape, whereby a large amount of wood and timber was burned. Held, that these averments were insufficient to justify a recovery against the railroad company, as it did not appear that the loss necessarily occurred from the burning, which was ordered by the company’s engineer, but from the negligent manner in which itNvas done by the employee of the sub-contractor.
    3. -statute construed. Section 1327 of the Revision does not extend the liability of railroad companies to the acts of those not their agents or servants.
    
      Appeal from Lucas District Court.
    
    Friday, January 24.
    This is an action to recover damages for setting out fire, and negligently permitting it to escape from the grounds of defendant to those of plaintiff, where it burned timber, wood, etc.
    The petition alleges, that the defendant is an incorporation organized under the laws of this State for the purpose of constructing and operating a railroad from Burlington to the mouth of Platt river; that the State has granted to said company the right of way through the State; that said road passes through Lucas county; that defendant let the contract of grading its road through Lucas county to J. 8. Wolf & Co., and that Wolf & Co. sub-let to John Fitzgerald; that in the contract with said Wolf & Co. defendant expressly reserved the right (to be exercised by its engineers) of giving, as the work progressed, general, and in many cases specific directions, as to how said work should be performed (the petition recites one paragraph of the specifications in said contract, as follows, to wit: First, the ground occupied by and set apart for the right of way is to be thoroughly cleared of all trees, logs, brush and rubbish, and other perishable materials, and the whole to be removed or burned up as the engineer shall direct, and before the grading is commenced ”); that in the month of May, 1867, Henry Gardner, an engineer of defendant, ordered one Pat. McGeary, a boss foreman of said Fitzgerald, to set fire to and burn certain brush and rubbish on the track of said road, at section-, at station 278, about five miles west of Chariton, in said county; that said Pat. McGeary did cause fire to be set to said brush, and rubbish, in obedience to said order, and that he and the hands of Fitzgerald negligently permitted said fire to escape to plaintiff’s lands, whereby a large amount of timber and wood was burned; that Gardner, as engineer of defendant, had full authority from defendant to give such order, and gave the same in 'obedience to directions from defendant, under the specification above quoted from the contract between tbe defendant and J. S. Wolf & Co.
    ■ A demurrer to plaintiff’s petition, on the ground that tbe persons doing tbe wrong complained of were not, in any sense, tbe servants or agents of defendant, was sustained by tbe District Court.
    Plaintiff appeals and assigns for error tbe decision of tbe court sustaining tbe demurrer.
    
      Warren S. Dungam, for tbe appellant.
    
      StMa/rt c& Brother for tbe appellee.
   Beok, J.

Were the persons who committed the wrong as shown in tbe petition, tbe servants or agents of defend-' ant in such a sense that it was liable for their ? Upon the determination of this ques-' , _ x ^ tiOn the case depends.

Tbe rule respondeat superior is limited by this principle: “The responsibility of the master grows out of, is' measured by, and begins and ends with bis control of tbe servant.” 1 Parsons on Contracts, 88. If tbe person sought to be charged under tbe rule as employer, did not contract with tbe party committing tbe wrongful act for bis labor or services, and is not directly liable to him for compensation for such labor or services, and has no such control over him as will enable tbe employer to direct tbe manner of performing tbe labor or services, be is not liable for tbe wrongful act of the agent or servant. 1 Parsons on Contracts, 90-92 and notes. In order to create tbe liability it is especially necessary that tbe control of tbe employer over tbe servant should be of such a character as to enable him to direct tbe manner of performing tbe services, and to prescribe what particular' acts shall be done in order to accomplish tbe end intended. Tbe principle may be illustrated by tbe case of a contract for the .erection of a house. The proprietor bargains ¡with the contractor that the edifice shall be erected at a particular place, within a prescribed time, of prescribed materials, and in a certain style. The proprietor has no control over the workmen which enables him to direct .what means they shall use to accomplish the work, or the way of performing or executing it. The means to be used and the way and manner of performing the work are. under .the control of the contractor only. Now, if •such means, are used to do the work, or it is done in such a way and manner that another is injured, dangerous machinery being used, or reckless and careless workmen employed, the proprietor cannot be held liable, for the simple reason that the law will not hold one responsible •for the acts of others over whom he has no control. See Kellogg v. Payne, 21 Iowa, 575, and authorities there quoted. ' The doctrine is learnedly discussed and the authorities extensively referred to by Judge Story, in his ■work on Agency, sections 454-459 and notes. The conr flict in the authorities is pointed out .or reconciled, and the principles above announced are substantially laid •down.

' The parties doing the wrongful acts complained of in .appellant’s petition, were the servants of the sub-contractor, and were not in any way under the 7 , , control ot defendant; it cannot .therefore be ■liable for such wrongful acts.

It is contended, with much ingenuity, by appellant’s .counsel, that, under the stipulation of the contract with :Wolf &.Co., quoted in the statement of the ease, appellee retained the right to direct and control the workmen, and did actually exercise that right through its agent, the engineer. A little thought will give a different view ■ upon this point. The contractors obligated themselves to ;clear off the ground covered by the right of way, by removing or burning up the trees, logs, etc., as the cngi neer should direct. The clearing of the ground was the work to be done, the end to be attained, and could be done in one of two modes at the option of the defendant.

In the exercise of that option, burning was chosen as the mode of accomplishing the end. But with the manner of burning, defendant had nothing to do, and over it exercised no control. It could not direct that the combustible materials should be gathered in large or small heaps, or on one side of the roadway or the other, or that the act of burning should be prudently and carefully done, and proper precautions of watchfulness be exercised in order to prevent danger to the property of others, all relating to the manner of doing the work required by the contract to be done. Steel v. The South-Eastern Railway Co., 81 Eng. Com. Law, 550.

The petition does not allege that the burning of the wood, brush, etc., was in itself an act necessarily dangerous to the property of appellant, but avers that the damage resulted because the act was carelessly and negligently done. The appellant did not sustain the loss on account of the act itself, but on account of the careless and negligent manner in which it was done. Appellee directed that the act should be done, and it was lawful and innocent in itself; the contractors only, had control of those who did the act, and could alone direct the manner of^its performance. The loss resulted from the manner of the act done; it is clear that appellee is not liable therefor.

It is contended that section 1327 of the Bevision, fixes liability upon the appellee. The provisions of the statute referred to in this section, relate to the right 0f way 0f raQroa(js and the manner of acquiring it, and contain sundry regulations in regard, to the crossing of plank-roads, turnpikes, canals and water courses by railroads, and impose certain duties upon the corporations in respect to bridges. Tbe provisions of this section, and the statute therein referred to, do not extend the liability of the corporations to acts of those not their agents or servants.

Affirmed.  