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of the servants of an independent contrac-exist, yet the person for whom the work was tor, for which the defendant is not liable, un- done may still be liable if the injury is such as less the injury to the plaintiff resulted from might have been anticipated by him as a prob

able consequence of the work let out to the conits disregard or neglect of some duty that it tractor, or if it be of such character as must owed to her and other persons using the side- result in creating a nuisance, or if he owes a walk on which she was injured. Deford v. duty to third persons or the public in the exeState, Use of Keyser, 30 Md. 179; City & s. cution of the work.” Ry. Co. v. Moores, SO Md. 348, 30 Atl. 643,

In Mitchell's Case the late Judge Schmuck45 Am. St. Rep. 345; Smith v. Benick, 87 er, after referring to Deford's Case and Md. 10, 41 Atl. 56, 42 L. R. A. 277; Decola others, said: v. Cowan, 102 Md. 551, 62 Atl. 1026; P., B.

As a result of these cases it may now be & W. R. R. Co. v. Mitchell, 107 Md. 600, 69 said to be settled in this state that although,

when the work is being done by an independent Atl. 412, 17 L. R. A. (N. S.) 974.

contractor, the employer will not be liable for [2, 3] The free and unobstructed use of the an injury caused by negligence in a matter colpublic streets is a right that belongs to the lateral to the contract, he will be liable if the public, and it is the duty of those owning and done, or if it be such as might have been an

injury be caused by the thing contracted to be occupying property abutting on a highway to ticipated by him as a probable consequence of so use their property and keep it in repair as the work let out to the contractor, and he took not to endanger the public while in the ex- no precaution to prevent it." ercise of that right. If, therefore, an abut And in the case of Baltimore v. O'Donnell, ting owner causes a nuisance to be erected on 53 Md. 110, 36 Am. Rep. 395, where the aphis property and injury to a person using the pellee was injured by reason of the fact that street follows as the result of the existence there was no light or signal to warn perof the nuisance, the owner is not absolved sons of the dangerous condition of the street, from liability because of the fact that he em- the court held that the primary obligation ployed an independent contractor to do the was upon the city to keep the street in a work. In other words, if the injury be caus- safe condition, and that it could not comed by the thing contracted to be done, the mit that duty to a contractor so as to avoid owner is responsible, but he is not liable for liability for injury resulting from a failure the negligence of the employés of the con- to maintain a proper warning of danger. tractor in a matter collateral to the contract.

Now, applying these well-established rules Again, the person for whom work is done will to the facts of this case, it is apparent thąt be liable when the injury is such as might the plaintiff, much as her painful and serihave been anticipated by him, as the probable ous injury is to be regretted, is not entitled consequence of the work, and he failed to to recover from the defendant, unless we are take the proper precaution to prevent it, or to hold that the suspension of the stage or where it results from his neglect to discharge scaffold above the sidewalk a duty that he owes to third persons or the menace to the safety of those using the street public in the execution of the work.

as to amount to a nuisance, or that the inIn Deford's Case, according to the evi- jury was one that might have been anticidence offered by the plaintiff, the wall on pated by the defendant as a probable consethe defendant's property, fronting on a pub-quence of having its building painted from lic street, was erected in such a defective à suspended stage or scaffold. and dangerous manner that it constituted a

The evidence shows that the work was nuisance, and Judge Alvey said:

done in the usual way in which buildings lo"If this be so, it [the wall] certainly consti- cated on public streets are painted; that the tuted a nuisance, for which the defendant would be liable. And the fact that the wall was erect- stage or scaffold was a "good" one; and ed by others, under contract, and to whom he that the accident was due entirely to the did not bear the relation of master, will not ex- negligence of the servant of Crooks, Zick & cuse him; for, as was said by Lord Campbell, Co. in not tying the guy line tight enough. in Ellis v. Gas Consumers' Co., 2 E. & B. 767, it is a proposition absolutely untenable that in There was no evidence to show that it was no case can a man be responsible for the act of a common occurrence for a painter to fall a person with whom he has made a contract. from a suspended stage, or that it was cusIf the contractor does the thing which he is em- tomary to erect guards or covers over sideployed to do, the employer is responsible for walks above which men are engaged in paintthat thing as if he did it himself."

Judge Alvey then adopts the statement of ing a building from a suspended stage, or to Baron Wilde in Hole v. R. R. Co., 6 Hurl. & "rope” the street so as to prevent persons Nor. 488:

from using the sidewalk during the progress “The distinction appears to me to be that of the work. On the contrary, the only eviwhen work is being done under a contract, if dence reflecting upon this feature of the an accident happens, and an injury is caused case was the testimony of the witness Israel, by negligence in a matter entirely collateral to who was engaged in painting the building the contract, the liability turns on the ques- at the time of the accident, and who testition whether the relation of master and servant exists.”

fied that he had had 43 years' experience in In City & S. Ry. Co. v. Moores, supra, the such work, and that he had never seen a court, speaking through Judge Boyd, said: man fall from 'a painter's stage, and had

"Even if the relation of principal and agent, never seen a stage fall to the sidewalk, that or master and servant, do not, strictly speaking, it was not necessary, as a general thing, to

erect barriers to prevent people from walk- | lied upon by the plaintiff. The accident was ing under the stage, and that after the ac- caused by the act of the contractor in doing what cident he went back to work and used the not expected to do, and what he did not intend

it was not necessary for him to do, what he was same stage and same guy lines; and the to do. *If it had been necessary for him to toptestimony of James L. Thomas, who stated ple the chimney over into the street, or to that he was a member of a firm engaged in remove the bricks by letting them fall into it, house painting and decorating, and that the the instructions would not have been objection

or the contract had contemplated such action, firm employed from 25 to 65 men, that he able; but, as this was not necessary or inhad been engaged in the business for 33 tended, the work could not be classed as work years, and that he had seen one man fall which, if properly done, was ordinarily attended

with danger to the public. The negligence, if from a scaffold, but had never seen a paint any, was in the mere detail of the work. The er fall from a swinging scaffold. This evi- contract did not contemplate such negligence, dence not only tends to show that the sus and the negligent party is the only one to be

held.” pended stage was not a nuisance, but also shows that there was no reason why the In the case of Laffery v. Gypsum Co., 83 defendant should have anticipated or pro- Kan, 349, 111 Pac. 498, 45 L. R. A. (N. S.) vided against injury to persons using the 930, Ann. Cas. 1912A, 590, the court, after sidewalk.

referring to the general rule which exempts In Deford's Case the plaintiff was injured the employer from liability where the work by the falling of the wall of a house which is done by an independent contractor, and to was in course of erection by an independ the exception to that rule in cases where the ent contractor for Deford. There was no work is intrinsically dangerous, however suggestion in that case that the erection of a skillfully performed, said: building fronting on the sidewalk of a pub “No effort will be made to define precisely lic street was a nuisance, but Deford's lia- the expressions “intrinsically dangerous' or 'inbility was based by the court upon the evi- in the authorities.' Regard must be had to the

herently dangerous,' or like phraseology, as used dence that the particular wall in question reason of the principle and the consequences was constructed in such a dangerous and flowing from its application in the given situdefective manner that it became and was a ation. The mere liability to injury from doing nuisance. And in Decola's Case the plaintiff happen in any undertaking, and many are at

the work cannot be the test, for injuries may was injured by a brick that fell from a house tended with great danger if carelessly managwhich Cowan, the contractor, was erecting ed, although with proper care they are not for and on the property of the North Balti- specially hazardous.' more Construction Company. The suit was After stating further that, although the abandoned as to the owner of the property, erection of buildings in cities is attended and this court said that there was no evi- with hazards, such work has not been redence in the case to make the company lia- garded as coming within the rule applicable ble for the injury. The court could not have to work intrinsically dangerous, the court decided as it did in those cases if the erec-quotes with approval the statement of Mr. tion of a house fronting on the sidewalk of Chief Justice Cockburn in Bower v. Peate, a public street is a nuisance; yet it is a L. R. (1876) 1 Q. B. Div. 321, that: matter of common knowledge that the erec "There is an obvious difference between comtion of such buildings is attended with some mitting work to a contractor to be executed risk, and that appliances extending over and from which, if properly done, no injurious con

sequences can arise, and handing over to him above the sidewalk are employed in the exe-work to be done from which mischievous consecution of the work. In the case of Boomer quences will arise unless preventive measures v. Wilbur et al., 176 Mass. 482, 57 N. E. 1004, are adopted.” 53 L. R. A. 172, the owner of a house em In the case of Geist v. Rothschild Co., 90 ployed a contractor to repair a chimney, and Ill. App. 324, the defendant employed a conthe plaintiff was injured by the falling of a tractor to paint the wall of his store. The brick during the performance of the con- painting was done from a scaffold suspendtract. The court there said:

ed from the top of the building, and the “The instructions to the jury allowed them to scaffold was lowered and raised by ropes at find a verdict for the plaintiff,

upon the end of the scaffold. The plaintiff was the ground that the work of repair called for injured by the falling of the ropes, the slack by the contract was necessarily a nuisance within the rule stated in Woodman v. Railroad ends of which were coiled on the scaffold, Co. [149 Mass. 335, 21 N. E. 482, 4 L. R. A. and were in some way knocked off and 213, 14 Am. St. Rep. 427), ubi supra, and oth-struck the plaintiff. The court there said er similar cases. The work called for was the that it was a daily occurrence in large cities repair of chimneys. At most, the brick were to be taken off for a few feet and relaid. The work like Chicago for the walls of buildings on which was to be done was not such as would its streets to be painted, and that the fact necessarily endanger persons in the street. It that it was necessary to suspend a scaffold did not involve throwing the brick into the street, or causing or allowing them to fall so as over the street in order to do it did not make to endanger persons traveling therein. It is plain it a nuisance, if the scaffold was securely that, unless there was negligence in the actual suspended; that there was nothing inherhandling of the brick, there could be no injuryently dangerous in doing the work, providto the passing traveler. * * This is not a case where the work, if properly done, creates a ed it was done by competent persons in the peril, unless guarded against as in the cases re-usual and ordinary way; and that there

*

*

was no question of fact for submission to the public from passing under the bridge or to jury in that connection. In the case of prevent the falling of the objects from it." Sartirana v. N. Y. County Nat. Bank, 139 In the case of Mcharge v. Newcomer, suApp. Div. 597, 124 N. Y. Supp. 197, the plain- pra, the plaintiff, while passing along the tiff was struck by a platform which was be- street, was struck by a heavy awning roller ing lowered by means of a derrick on a build- which was "allowed by a party repairing the ing in course of construction by an inde- awning in some way shown to suddenly fall pendent contractor. The court held that the upon her.” The defendants offered no evibank, the owner of the property, was not li-dence explaining the falling of the roller, able, and said:

but introduced proof to show that the awn“The work to be done here was no more in- ing was being repaired by an independent trinsically dangerous than the construction of contractor. The Supreme Court of Tennesa building along a public street usually is. see held that the awning was a nuisance, and height or at all out of the ordinary, so far as held further "that the work contracted for exterior construction was concerned, and, un-involved a thing intrinsically dangerous to less the owner is in every case bound to guard the public, from which injuries to those usagainst possible injuries to passers-by, which is not the law, the bank could not be held liable ing the street were probable and might reafor the negligence of a contractor."

sonably be anticipated by the proprietor,"

and in conclusion said: See, also, Mehler v. Fisch, 63 Misc. Rep.

"The awning of the defendants, so far as it 549, 120 N. Y. Supp. 807.

appears from this record, was being repaired by Without meaning to go to the full extent that contractor, over a much frequented street, of some of the authorities cited in the appli- in a populous city, and at a place where per cation of the rules announced, applying the sons were constantly coming and going and

standing, upon the invitation of the defendprinciples they established to the facts of ants, for the purpose of trading with them and this case, we cannot hold that the suspension taking the street cars, without any precautions of the stage or scaffold from the cornice of taken to prevent portions of the awning, mathe defendant's building created a nuisance,terial, or tools from falling on those below.”

In the case of Doll v. Ribetti, supra, the or that the use of the stage in painting the building rendered the work so dangerous as syllabus contains the following statement: to require the defendant to erect covers or erected flush with the sidewalk, permitted the

“Where defendant, a tenant of a building guards over the sidewalk in order to protect servant of an independent contractor to stand persons walking thereon, or to erect barriers on the window ledges to clean windows on the to prevent persons from using the sidewalk outside without providing scaffolding or other during the progress of the work. To do so jured plaintiff, who was walking past the build

safety appliances, and the servant fell and inwould impose a useless burden upon property ing, whether the tenant was negligent in not owners in cities, and subject the public to un- providing scaffolds or safety appliances was for necessary inconvenience. Of course there is

the jury.” some risk incident to the projection of any

The statement of claim in that object over a highway, but the duty of the charged : owner of abutting property does not require been a custom to have the windows of such

"That in the said city of Pittsburg it had him to provide against all possible injury, buildings cleaned by persons standing ouside of and it is only such injury as may be reason the sash and on the sills of the windows, seably anticipated {hat he is bound to take pre-cured from falling by a stout belt worn about cautions to prevent.

the waist, with a strap on each side thereof,

fastened to a hook or other fixture set for the The appellant relies largely upon Mitch-purpose in the side frames or casing of each ell's Case and the cases of Doll v. Ribetti, window." 203 Fed. 593, 121 C. C. A. 621, and McHarge It further averred "that the building ocv. Newcomer, 117 Tenn. 595, 100 S. W. 700, cupied by the defendant was not, and never 9 L. R. A. (N. S.) 298. In Mitchell's Case the had been, provided with such hooks, or with alleged injury was inflicted by a hammer any other fit or appropriate fixtures for the which fell from a bridge being erected over purpose stated," and that the defendant, long one of the public streets of Havre de Grace, prior to the day of the accident, “knew, or, and struck the plaintiff's umbrella as she by the exercise of reasonable care, should was passing along the street under the bridge, have known, that the windows of the buildand the court said:

ing were not equipped with the customary “There is evidence in the record tending to hooks or other appropriate fixtures,” etc., show that in the construction of such bridges, and that, while the servant of the contractor ties and braces between the girders composing was engaged in cleaning the window on the the span, they are compelled to work with fourth floor of the building, he accidentally great rapidity in order to put the rivets in place lost his balance and fell upon the plaintiff, and clench them while at a white or red heat, who was walking upon the sidewalk below. and as a result rivets, tools, and other ar- The court said that the facts alleged in the ticles handled with such rapidity frequently fall to the ground beneath and renderit un statement of claim were for the most part safe for travel, unless properly guarded. There undisputed, "and that there was evidence is like evidence that in the construction of the tending to support all of the allegations of bridge now in question such objects did, in fact, frequently fall upon the street below it,' and fact upon which were based the charge of that no precautions were taken to hinder the negligence of the defendant." In that case

therefore, the negligence of the defendant ; pellant that the question whether the injury alleged and shown by the evidence was his might reasonably have been anticipated by failure to furnish the appliances and safe- the defendant as a probable consequence of guards usually provided by the owner or oc- the work contracted to be done was one of cupier of a building to prevent those engaged fact for the jury. That, of course, is the in washing the windows from falling.

general rule (Bonaparte v. Wiseman, 89 Md. The distinc, ion between those cases and 12, 42 Atl. 918, 41 L. R. A. 482; P., B. & W. the case at bar is obvious. Here the evi- R. Co. v. Mitchell, supra), but here we are dence shows that the accident was due to the considering the legal sufficiency of the plainfailure of the servants of Crooks, Zick & Co. tiff's evidence; the burden being upon her to to properly fasten or tie the guy lines. There show that the defendant was guilty of negliis no evidence to show that the defendant gence. There was no evidence to show that neglected to provide any safety appliance the injury might have been anticipated as a that was customarily supplied by the owner probable consequence of the work in which of the building, or that it was a common oc- the contractor was engaged. On the contracurrence for painters to fall from a suspend- ry, as we have said, the work was done in ed stage or scaffold.

the usual way, and all the evidence tends to [4] The appellant contends that the de- show that there was no reason why the defendant owed an absolute duty to the public fendant should have anticipated any injury not to interfere "with their right to the safe to persons using the sidewalk. The mere and unimpeded use of the sidewalk." The fact that the servant of the contractor fell duty that the owner of property on a high- and injured the plaintiff would not justify way owes to the public is not to create a an inference that the injury was caused by nuisance on the highway, and to take proper the negligence of the defendant, especially precautions to prevent injuries that may be as it was shown to have been due entirely to anticipated as a probable consequence of the negligence of the contractor's servant, work in which he, or his contractor, is en which the defendant had no reason to angaged. But that duty did not make the de- ticipate. Joyce v. Flanigan, 111 Md. 481, 74 fendant an insurer against injury to the pub- Atl. 818. lic, or require him to provide against all pos [7] The maxim "res ipsa loquitur" cannot sible injury, however remote, nor did it re- aid the plaintiff in this case. The man who quire the defendant to go on the top of its fell and injured her did not fall from the building to see that the guy lines used by the defendant's building, but from the stage or contractor were properly tied. In City & S. scaffold, which was not under its manageRy. Co. v. Moores, supra, the plaintiff was in- ment or control. The case most frequently jured by reason of her horse becoming fright- referred to in this state as containing the ened at a steam engine which was being used true statement of the rule is the case of by White, an independent contractor, in the Scott v. London Dock Co., 3 Hurl. & Colt. execution of certain work on a turnpike. Aft- 596, where it is said: er referring to the rule stated in O'Donnell's “There must be reasonable evidence of negCase, supra, and Ware's Case, 16 Wall. 566, ligence. But where the thing is shown to be

under the management of the defendant or its 21 L. Ed. 485, Judge Boyd said:

servants, and the accident is such as, in the “But the evidence shows that the injury was ordinary course of things, does not happen if sustained by the negligent use of the engine in those who have the management use proper care, not stopping it and in blowing the whistle as it affords reasonable evidence, in the absence of she [the plaintiff] approached. It would be explanation by the defendant, that the accident carrying the obligation of the turnpike company arose from want of care.' Howser v. C. & P. beyond that required or authorized by the au-R. R. Co., SO Md. 146, 30 Atl. 906, 27 L. R. thorities to hold that its duty to the public A. 154, 45 Am. St. Rep. 33); Decola v. Cowrequired it to see that the servants of White an, supra; Walter v: Baltimore Elec. Co., 109 were not thus negligent, although the use of Md. 513, 71 Atl. 953, 22 L. R. A. (N. S.) 1178; the steam engine was not a nuisance per se, and Ches. Iron Works v. Hochschild, 119 Md. 303, could be operated so as not likely to do any S6 Atl. 345. injury to any one using the road. It would be

[8] Albert C. Putts, the president of the requiring too much of it to make it take such precautions against accidents when letting out defendant, was called as a witness for the lawful work to an independent contractor. It plaintiff, and was asked if the painting that must be admitted that the work to be done was was done on the defendant's building was lawful, and the company had the right to assume not done by the defendant, and he answered, that there would not be such negligence as that complained of, which was entirely collater- | “Yes.” He was then asked, “Your company al to, and not a probable consequence of, the was having the building painted ?" To which work contracted for. To hold the company to he replied, “Yes we gave the contract to have such a strict liability would practically forbid it painted.” On cross-examination he was it from having such work done by contractors, asked by counsel for the defendant to whom gines to see that there was no negligence on the the appliances used in connection with the part of the contractors or their servants."

painting belonged. The plaintiff objected to This statement of Judge Boyd's was quoted the question, but the court overruled the obat length and approved in the later case of jection, and the witness answered that they Symons v. Road Directors, 105 Md. 254, 65 belonged to Crooks, Zick & Co. After statAtl. 1067.

ing further that the defendant had nothing [5, 6] It is also urged on behalf of the ap- to do with the work, did not employ the

men engaged in it, and had no control over the scene of the accident that would suggest them or the appliances and methods used in the propriety of allowing a witness who was doing the work, the witness was asked on familiar with those conditions to express an redirect examination by counsel for the plain- opinion as to whether the suspension of the tiff if the defendant took "any precaution to stage rendered the use of the sidewalk unsafeguard the travel on the sidewalk," or safe, and the rule that allows a witness to did anything “to protect the pedestrians state that a particular road with which he walking along the street under the ladder," is familiar is in a dangerous condition should which questions were objected to by the de- not, for obvious reasons, be applied in this fendant, and the court refused to permit the case. witness to answer them. These rulings form [11] But even if this is not so, it is not ed the subject of the first three exceptions. probable that the plaintiff was prejudiced by The witness having stated in his examination the rulings, for the witnesses had already in chief that the painting "was done by” the stated that they had never known a man to defendant, and that the defendant "gave the fall from a swinging scaffold. Mr. Thomas contract to have it painted," the defendant was asked in the examination in chief if he had a right to have him explain, and to in- had ever known a man to fall from a paintterrogate him as to the extent of the de- er's scaffold, and he answered, “Yes." On fendant's connection with the work. The cross-examination it developed that he did questions asked in the second and third ex- not mean that he had seen a man fall from ceptions did not relate to any matter refer- a suspended scaffold, but that he had seen red to in the cross-examination, and there one fall from a different kind of scaffold, and was, therefore, no error in either of those the defendant then moved that his statement rulings.

that he had seen man fall from scaffold be [9] The fourth, fifth, sixth, and tenth ex- stricken out, and the eleventh exception is ceptions are to the refusal of the court be- to the granting of that motion. The queslow to permit the witness to say whether tion in the case was whether there was any they had ever known paint buckets, brushes, reason to anticipate injury from the falling or ropes to fall from ladders or scaffolds of a man from a ladder such as was used in used in painting buildings. We see no error painting the defendant's building, and the in these rulings. The plaintiff was not in fact that a man had been known to fall from jured by the falling of a paint bucket or a different kind of scaffold would not have brush, and, even if proper care required the aided the jury in determining that question. defendant to provide against injuries from It would not follow because a man had been such causes, it would not follow that it was known to fall from a different kind of ladder its duty to anticipate injury from the falling that a painter would likely fall from one of of a man from the scaffold.

the kind referred to in this case. It might [10] Mr. Israel stated that it was not nec- very well be that one could be used without essary as a general thing to erect barriers on any risk of injury to persons on the sidethe sidewalk to warn persons against using walk while the other could not. it when a building is being painted from a Finding no error in the rulings of the court suspended stage, and that with 43 years' ex- below, the judgment will be affirmed. perience he had never known a man to fall Judgment affirmed, with costs to the apfrom a stage. Mr. Thomas, who had been pellee. a painter for 33 years, testified that he had

(245 Pa. 164) never seen a man fall from a swinging scaf

CHAMBERS v. FOLEY. fold. They were asked by the plaintiff's counsel whether, in their opinion, the sus

(Supreme Court of Pennsylvania. April 27,

1914.) pension of a stage above a sidewalk "made the use of” the sidewalk more dangerous or

DEEDS ($ 171*)–COVENANTS-BUILDING RE

STRICTIONS-VIOLATION. dangerous, and the seventh, eighth, and ninth The erection of a theater fronting on a cerexceptions are to the refusal of the court to tain street and covering the entire front of a lot permit those questions to be answered. The is a violation of a restriction in a deed, providburden was on the plaintiff to show that the shall be erected on the lot, fronting on such

ing that no building other than dwelling houses injury was such as might reasonably have street. been anticipated as a probable result of the [Ed. Note.-For other cases, see Deeds, Cent. work that was being done, and that could Dig. $$ 450, 537–542; Dec. Dig. $ 171.*] not be shown by the opinion of the witnesses Appeal from Court of Common Pleas, Philthat the suspended stage rendered the use of adelphia County. the sidewalk more dangerous or dangerous. Bill by William W. Chambers against WalThat was the very question the jury had to ter C. Foley for an injunction to enforce a decide upon all the evidence in the case, and building restriction. From a decree awardit was incumbent upon the plaintiff to pro-ing injunction, defendant appeals. Affirmed. duce evidence from which the jury could in

On final hearing, Ralston, J., filed the folfer that the suspension of the stage made lowing opinion in the court below: the "use of” the sidewalk dangerous. There

The restriction in the deed for defendant's was nothing in the conditions surrounding lot provides “that no building shall be erected *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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