one time than another, or that the act was more likely to produce him or others harm?

If we apply the same reasoning to a plaintiff, then we have the rule that if, on his journey, he at some time drove at an immoderate rate of speed, so that he reached a crossing in advance of the time be otherwise would but for such act, and he comes in collision with a train running at proper speed and upon regular time, and is thereby injured, he is guilty of such negligence, contributing to his injury, as will prevent his recovery. It is safe to say that courts generally will not accept the doctrine of the Wisconsin court, especially when carried to the extreme, or applied to conditions similar to those existing in the case referred to.

In Fowler v. Railway Co., 61 Wis. 159, 21 N. W. 40, the gravamen of the complaint was that the defendant furnished for yard purposes an ordinary engine, with a "goose neck" projection, and that, if they had used an engine specially constructed for and adapted to such use, he would not have been injured. The court says. "The projecting goose neck of the passenger engine was not the proximate cause of the injury. It was only the instrument that inflicted it. It is perfectly clear that the injury of the plaintiff was caused by the negligence of the engineer or his brakeman in running the engine upon him in the manner they did, without notice, signal, or warning."

MAST. AND SERV.-30

CHAPTER XXII.

INDEPENDENT CONTRACTORS.

One who employs an independent contractor is not liable for his or his servants' negligence, p. 467. Exception to rule where ordinary mode of doing the work naturally causes injury, p. 467.

So, also, where incompetent contractor is selected, p. 468.

So, also, where employer dictates improper means or method, p. 468.

Doctrine of respondeat superior applies where employer retains control and direction of the work, p. 468.

Difficulty in application of the rules, p. 469.

Illustrations of existence of the relation, p. 470. Employer's liability to servants of contractor, p. 471.

The rule as applied to railroads is perhaps more liberal in respect to the liability of the company, p. 472.

Supervision by company's engineer does not change the rule, p. 473.

Nor does retention of funds by employer to pay for possible injuries, p. 473.

Nor does retention of power to discharge workmen, p. 473.

Nor does the fact that the contractor is to follow

specifications, p. 473.

Nor does the fact that the employer retains right to

supervise or direct, p. 473.

Liability when railroad is being constructed and op

erated by contractor, p. 473.

Acts of servant not within scope of employment, p. 474.

Where one person employs another to furnish the materials and do a specific job of work as an independent contractor, he does not thereby render himself liable for injuries caused by the sole negligence of such contractor or his servants.1

The relation of master and servant does not exist where the person employed is in the exercise of a distinct, independent employment, and not under the immediate control or direction of the employer.2

An exception to the general rule is that where the performance of such contract, in the ordinary mode of doing the work, necessarily or naturally results in producing the defect or nuisance which causes the injury, then the em

'Hackett v. W. U. Tel. Co., 80 Wis. 187, 49 N. W. 822; Hundhausen v. Bond, 36 Wis. 40; Whitney v. Clifford, 46 Wis. 146, 49 N. W. 835; Robbins v. Chicago, 4 Wall. 679; Hilliard v. Richardson, 3 Gray, 349; Conners v. Hennessey, 112 Mass. 96; Blake v. Ferris, 5 N. Y. 48; McCafferty v. Railroad Co., 61 N. Y. 178; Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755; Scammon v. Chicago, 25 Ill. 424; Pifan v. Williamson, 63 Ill. 16; Hale v. Johnson, 80 Ill. 185; Hughes v. Railway Co., 39 Ohio St. 461; Stone v. Cheshire R. Corp., 19 N. H. 427, 51 Am. Dec. 200, note.

2

Pierce v. O'Keefe, 11 Wis. 181; De Forrest v. Wright, 2 Gibbs, 368; Ohio South. R. Co. v. Morey, 47 Ohio St. 207, 24 N. E. 269; Little Miami R. Co. v. Wetmore, 19 Ohio St. 110; Hughes v. Railroad Co., 39 Ohio St. 476; McCarthy v. Second Parish, 71 Me. 318; Aston v. Nolan, 63 Cal. 269; Wabash, St. L. & P. Ry. Co. v. Farver, 111 Ind. 195, 12 N. E. 296; Waltemeyer v. Railway Co., 71 Iowa, 626, 33 N. W. 140; Sweeney v. Railroad, 128 Mass. 5; New Orleans & N. E. R. Co. v. Reese, 61 Miss. 581; Deford v. State, 30 Md. 179; Speed v. Railway Co., 71 Mo. 303.

ployer is subject to the same liability to the injured party as the contractor.3

The general rule is subject to the qualification that the employer cannot knowingly select an incompetent contractor, and then escape liability for injuries occasioned by reason of the incompetency of such contractor; and also that the owner cannot dictate that his structures or other appliances shall be constructed of improper materials, or upon a defective or unsafe plan, and escape liability for injuries caused thereby because he made a contract with third person to construct it; nor can he, with knowledge of a weakness or defect threatening its strength, or rendering it a dangerous place, direct men to work in or near it, and, in case of injury from such defects, shift all responsibility upon the contractor.5 The latter proposition of the exception is but an application of the familiar rule that the master must exercise reasonable care to provide a safe place for his servant to perform his work.

The principle of respondeat superior is confined in its application to the relation of master and servant, and principal and agent. Where, however, the employer retains the control and direction over the mode and manner of doing the work, and an injury results from the negligence or misconduct of the contractor or his servants or agents, the employer is then placed under a liability equal and similar to that which exists in the ordinary case of principal and agent.

'Chicago v. Robbins, 2 Black, 418; also cases just cited.

464.

Robbins v. Chicago, 4 Wall. 657; Homan v. Stanley, 66 Pa. St.

Meier v. Morgan, 82 Wis. 294, 52 N. W. 174; Whitney v. Clifford, 46 Wis. 138, 49 N. W. 835; Trainor v. Railroad Co., 137 Pa St. 148, 20 Atl. 632.

City of Cincinnati v. Stone, 5 Ohio St. 40.

It was said in Pierce v. O'Keefe:7 "The question how far a party is liable for the negligence or torts of any per son employed by him, while executing or attempting to execute the duties of that employment, has of late undergone much discussion, both in this country and in England; and although there have been some cases which have stated the law upon this subject in terms so general and loose that it would hold a party responsible for the torts, negligence, or unskillfulness of any other whom he had employed, in no matter what capacity, while executing the employment, yet the later cases are discriminating much more closely, and are defining this liability in such manner as to place it upon a much narrower, as well as more rational, basis. The case of Hilliard v. Richardson 8 contains an elaborate review of the authorities on the subject, and we consider the comments and conclusions of the court just and reasonable.

The general result seems to be that such a liability arises only where there is a direct relation of master and servant; where the injury arises from something that amounts to a nuisance established upon the defendant's land; or where it occurs in the execution of a work under public authority, when the law will not permit those to whom the power is delegated to evade the responsibilities imposed, by employing others, even though they do so in such manner that the direct relation of master and servant does not exist."

It is not always easy to determine, by the application of the foregoing rules, when one is an independent contractor, whether the employer remains or becomes responsible for injuries occasioned to the employes of such contractor from the negligence of the contractor himself, or other servants in his employ, or whether such servants of a contractor, or

11 Wis. 181.

3 Gray, 349.