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enforcing the provisions of the sections of indicate or disclose the details, agency, or the ordinance which were declared invalid, means by which the subject of the act is to this appeal has been taken.
be carried into effect. Bond v. Baltimore, The court below, by the decree appealed 116 Md. 689, 82 Atl. 978; Levin v. Hewes, against, held and declared that section 1 118 Md. 626, 86 Atl. 233; Worcester Co. v. of the ordinance, in so far as it repealed and School Comm’rs, 113 Md. 307, 77 Atl. 603; reordained, with amendments, sections 13, Gould v. Baltimore, 120 Md. 534, 87 Atl. 818. 16, and 17 of article 23 of the Baltimore The object and purpose of the ordinance City Code of 1906, title ‘Markets,' to be in- in question, as its title disclosed, was to valid, and that said sections 13, 16, and 17 of repeal certain sections of the Baltimore City article 23 of the Baltimore City Code of 1906, Code of 1906, article 23, title "Markets." as ordained or attempted to be ordained or and to reordain them, with certain amendbe reordained by said section 1 of the or- ments. dinance, was invalid, null, and void. Section The amendment to section 4 of article 23 3 of the ordinance was also declared to be of the City Code transfers the duty of cleaninvalid and void.
ing the market from the clerks of the market The validity of the ordinance is assailed to the Commissioner of Street Cleaning and upon a number of grounds, and these objec- provides as follows: tions are set out at considerable length in "4. It shall be the duty of the commissioner the plaintiffs' bill. The bill, in substance, of street cleaning to see that all of the marcharges, as stated by the appellants in their kets of Baltimore city are kept well cleaned and
free from dirt, filth, snow and rubbish. He brief: (1) That the title of the ordinance is shall perform such duties and obey such rules insufficient; (2) that the fixing of rents for and regulations in respect to keeping the marthe market stalls is a legislative function, kets clean as may be prescribed from time to which could not be delegated to the clerk, time by the board of estimates." with the approval of the board of estimates;
The amendment to section 13 of article 23 (3) that the ordinance impairs the obliga of the City Code provides that the market tions of contracts; (4) that said ordinance clerks, with the approval of the board of will produce revenue in excess of the ex- estimates, shall have power to fix the rent penses of the markets; (5) that section 3, of all stalls in any market of Baltimore city, requiring the license year to date from May instead of the clerks of the several mar1, 1913, which was prior to the passage of kets with the consent of the mayor. the ordinance, renders the ordinance void;
Code, art. 23, § 13, was as follows: (6) that the charges are arbitrary and un "13. The clerks of the several markets, with reasonable; and (7) that the ordinance is the consent of the mayor, shall have power to
fix the rent of all stalls, stands and benches, void because it makes the license date from not enumerated in this article, provided, that May 1st instead of January 1st, under sec- the rent for all street stalls in all markets shall tion 59 of the charter.
be five dollars ($5) per annum, including li
cense." We shall consider these objections in the order as named, and as set out in the bill,
Code, $ 13, as amended, reads as follows: in so far as it may be necessary, for the
"13. The clerks of the several markets, with purposes of the conclusion we have reached have power to fix the rent of all stalls, stands,
the approval of the board of estimates, shall in the case. Some of them have been set- shambles, benches or places in any market of tled by previous decisions of this court, and Baltimore city; provided that no rent shall be need but a passing comment.
charged for street stalls, the occupants of which
shall pay an annual license, and an annual  As to the title of the ordinance in ques-charge in lieu of per diem, hereafter provided tion, we need only say, that we think its for. But nothing in this section shall prevent subject-matter is sufficiently set out and de- the mayor and city council of Baltimore, at
any time hereafter, from fixing by ordinance, scribed in the title to answer the require- the rent of all stalls, stands, shambles, benches ments of the charter and of the Constitu- or places in any market of Baltimore city." tion. It will be seen that sections 4, 13, 16,
It is contended upon the part of the plainand 17 are Code sections of the Baltimore tiffs below that “the fixing of rent" of marCity Code of 1906, and they are codified ket stalls is a legislative, and not an adminunder the head of part 1, "General Provi-istrative, power and duty, and cannot be lawsions Relating to Markets," as article 23 of fully delegated by the mayor and city counthe Code. Ordinance No. 332, now undercil of Baltimore to the clerks of the markets, consideration, repeals and reordains these with the approval of the board of estimates, Code sections with amendments, and it is as provided by the ordinance. difficult to see how any one could be misled The court below held that the delegation by the title in this ordinance as to the sec- of power or duty as contained in the amendtions of the Baltimore City Code dealt with, ment to section 4 of the ordinance was a minand intended to be repealed and the amend- isterial or administrative function, and that ments thereto.
this amendment was valid, but struck down  It is well settled by the numerous cases the amendment to section 13, as a legislative dealing with this subject that it is only the function which could not be delegated. subject-matter of the act that need be de By section 6 of the city charter (Acts 1898, scribed in the title, and the title need not c. 123) the mayor and city council of Balti
more is given very broad powers “to license, 13 of this ordinance was sustained and held tax, and regulate all businesses, trades, avo- valid. The ordinance contained the followcations or professions;" "to erect, regulate, | ing provision: control and maintain markets and stalls, “That stalls, tables or space in this market within the city of Baltimore;" "to lease, sell shall be rented to butchers or others desiring to or dispose of any stalls or stands in any period as may be desirable, upon such terms
hire the same by the month or such longer market in such manner and upon such terms and for such sums as the board of public works as it may think proper."
shall determine." Kramrath v. City of Albany, [3, 4] The rule is plain and well establish-127 N. Y. 575,,28 N. E. 400. ed that legislative or discretionary powers or
 We come now to Code, $$ 16, 17, as trusts devolved by law or charter on a coun- amended by the ordinance. Section 16, as cil or governing body cannot be delegated to amended, deals with the per diem charge, others, but ministerial or administrative and, as stated, imposes an annual charge in functions may be delegated to subordinate lieu of the ten cents per day formerly colofficials.
lected, or supposed to be collected, by the In 28 Cyc. 277, it is said the general rule market clerk, the annual charge to be payaseems to be that powers which are not im- ble either all at once or monthly to the perative may be delegated by the common comptroller, this annual charge amounting to council to some subordinate body or officer. a little less than the per diem formerly It is now the recognized rule that the state chargeable; but the amended ordinance puts may expressly authorize delegation of certain this charge on all the stall owners, not expowers by the corporation. In the absence cepting the butchers, heretofore excepted in of such express authority, the council must the prior provision. itself exercise all discretionary powers, but
Section 17, as amended, deals with the lithis does not forbid the delegation of minis-cense charge, and fixes the amount of the terial or administrative functions to subor- annual license at $10 instead of $5, and subdinate officials.
stitutes the board of estimates for the mayIn Hitchcock v. Galveston, 96 U. S. 341, or. It is a copy of Code, $ 17, with the ex24 L. Ed. 659, the Supreme Court, in dealing ception that the license is made $10 per anwith a delegation of power by ordinance, num instead of $5, and the board of estimates said:
is substituted for the comptroller. "If the city council had lawful authority to
These sections, we think, are free from construct the sidewalks, involved in it was the the objections urged against them, and the right to direct the mayor and the chairman of court below committed an error in holding the committee on streets and alleys to make a contract on behalf of the city doing the work. them invalid. * * * It is true the council could not dele The mayor and council could not by ordigate all the power conferred upon it by the Leg-nance authorize the clerks of the markets, islature, but, like every other corporation, it could do its 'ministerial work by agents. Noth with the approval of the board of estimates, ing more was done in this case," and "there was to increase the rent of any stall, where the therefore no unlawful delegation of power." annual rent had been fixed by the contract
The right to delegate power by municipal of sale and purchase. It is admitted by the authorities rests upon the same principle and appellants that the ordinance only empowers is controlled in the same way as the delega- the fixing of the rent of all stalls not fixed tion of legislative power by the state. Jack- by contract. The ordinance as thus consonville v. Ledwith, 26 Fla. 193, 7 South. strued—that is, as applying only to stalls as 885, 9 L. R. A. 69, 23 Am. St. Rep. 558; Cool- to which the rent is not fixed by contractey on Constitutional Limitations, 291; Gregg would not be open to the contention that its v. Laird, 121 Md. 1, 87 Atl. 1111; People v. enforcement would impair the obligation of Trunk Ry. Co., 232 Ill. 292, 83 N. E. 839; a contract, and with this construction it will Charleston v. Goldsmith, 2 Speers (S. C.)
C.) not be necessary for us to discuss further 428; Baltimore City v. Gahan, 104 Md. 152, this objection to the ordinance. 64 Atl. 716.
As was said by this court, in Bond v. M. &  We think that fixing the rent of market C. C. of Baltimore, 116 Md. 690, 82 Atl. 978, stalls in the city of Baltimore is an adminis- it cannot be assumed in this case that the trative, and not a legislative, function, and city will undertake to condemn or take propmay be delegated to the clerks of the mar-erty for purposes other than those authorkets, as provided by the ordinance in ques-ized by law. The presumption is that the tion. The power to rent the stalls in the city will act within its rights, and not beyond markets of Baltimore city was delegated by them. ordinance approved April 11, 1797, to the  Section 3 of the ordinance provides clerks of the several markets, and the pow- that the license fees hereinbefore provided er has been continued in some form by sub- for shall be due and payable as of May 1, sequent city legislation. City Code, 1869, 1913. The ordinance was approved on July 1879, 1893, and 1906.
25, 1913. In Jacksonville v. Ledwith, 26 Fla. 193, 7 It is earnestly insisted that this section is South. 885, 9 L. R. A. 69, 23 Am. St. Rep. 558, invalid: First, because it retroactively a public market ordinance containing some changes vested rights conferred by existing what similar provisions as those in section laws; and, secondly, because it is in con
flict with section 59 of the city charter,, in granting an injunction to restrain its exwhich provides : ,
ecution and enforcement. "That all licenses imposed by ordinances shall The decree will be reversed, and the bill be due and collectible in the first week in Janu- dismissed. ary in each year, and it shall be the duty of said collector of water rents and licenses to
Decree reversed, and bill dismissed, with see that said licenses were paid at that time." | costs. While we do not think that the market li
(123 Md. 249) cense fees provided for by the ordinance can be payable and collectible as of May 1, 1913, WEILBACHER v. J. W. PUTTS CO. (No. 29.) under an ordinance passed and approved on (Court of Appeals of Maryland.' April 8, 1914.) July 25, 1913, there can be no difficulty, 1. MASTER AND SERVANT (8 316*)—LIABILITY
TO THIRD PERSONS INDEPENDENT CONhowever, in holding that the ordinance would
TRACTOR. take effect and operate prospectively. At The owner of a building contracted with a least this objection would not be a ground or painter to paint it, he to furnish the appliances reason for holding the ordinance as invalid and employ the labor therefor, the owner not
retaining any supervision of the work or any in this case and thus declaring it void. control over the men, and the contractor used
 Nor do we think that section 59 of the a stage fastened by guy lines which were not charter, set out herein, applies to market tight enough, and which allowed the stage to licenses. In Meushaw v. State, 109 Md. 92, tiffas she was passing on the sidewalk below.
slip, so that he fell therefrom and struck plain71 Atl. 457, we held that this section applies Held, that the negligence was the negligence of to purely license taxes. The license fee, as an independent contractor, for which the ownprovided by the ordinance, is for the use of er was not liable. a stall for a definite period, and Servant, Cent. Dig. 88 1242, 1243; Dec. Dig. $
[Ed. Note. For other cases, see Master and the license is also evidence of title in the 316.*] grantee or assignee thereof to the stall, 2. MASTER AND SERVANT (8 316*) INDEPEND
* and does not fall within the provi ENT CONTRACTORS-PUBLIC NÚISANCE-ENsions of section 59 of the city charter. The DANGERING PUBLIC STREET. section provides that it shall be the duty of pendent contractor to paint it, and the contrac
The owner of a building employed an indethe collector of water rents and licenses to tor negligently fastened the guy ropes so that see that the licenses are paid at that time, the stage on which he was painting slipped, and and it appears, therefore, that this section he fell and struck plaintiff on the sidewalk be
low. It appeared that the work was done in applies to licenses to be collected by the col- the usual way, and there was no evidence that lector of water rents and licenses, and not it was customary to erect guards over sideto market license. Market licenses in the walks above which men were painting from a city of Baltimore have been collected for while an abutting owner causing a nuisance to
suspended stage during the work. Held that, many years by the comptroller, and have be erected on his property, is not excused from been dated as of May 1st: City Code 1906, liability for an injury therefrom to a person usart. 23, 88 71, 101; sections 82, 91, and 92. | ing the street because he employs an independas amended by Ordinance 283, May 20, 1907. pension of the stage above the sidewalk was
as  The fourth and sixth objections are not such a menace to the safety of those using clearly without force. The necessity and it as to amount to a nuisance, the owner was
not liable. reasonableness of an ordinance when passed
[Ed. Note.-For other cases, see Master and in pursuance of the charter powers of a mu- servant, Cent. Dig. 88 1242, 1243; Dec. Dig. $ nicipality is primarily committed to the coun- 316.*] cil, and, unless the ordinance is purely arbi-3. MASTER AND SERVANT ($ 321*)-INDEPENDtrary, oppressive, or capricious, the courts ENT CONTRACTORS_USE OF BÚILDING-ENwill not interfere to prevent its enforcement.
DANGERING PUBLIC STREETS.
Such conditions were not such that the inGould v. Baltimore, 120 Md. 534, 87 Atl. 818; jury might have been anticipated by the owner Richmond R. R. v. City of Richmond, 96 U. as the probable consequence of the work if he S. 521, 24 L. Ed. 734; Meushaw v. State, 109 failed to take proper precaution to prevent it, Md. 91, 71 Atl. 457; Etchison v. Mayor of and hence the owner was not liable; although,
if the injury had been such that he should have Frederick, 123 Md. 283, ,91 Atl. 161.
anticipated it, he would have been liable.  We find nothing in the terms or pro [Ed. Note.-For other cases, see Master and visions of the ordinance here in question that servant, Cent. Dig. & 1262; Dec. Dig. $ 321.*] would authorize a court to declare the 4. MASTER AND SERVANT (8 321*)-INDEPENDcharges as fixed as excessive, arbitrary, or
ENT CONTRACTORS-PUBLIC NÚISANCE-EN
DANGERING PUBLIC STREET. unreasonable. It appears that, as to all the
The duty of the owner of property abutting eave stalls and the permanent stalls, they on a highway not to create a nuisance on the are only $5 a year more than they were highway endangering the public use thereof before; as to the butchers, who pay the does not make him an insurer against injury most, the highest that any one pays is only all possible injury, and did not require him, on
to the public or require him to provide against $48 a year altogether, or 16 cents per day. employing an independent contractor to paint
It therefore follows, for the reasons we the building, to see that the guy ropes used by have stated, that the court below committed the contractor to fasten a stage were properly
tied. an error in holding sections 1 and 3 of the
[Ed. Note.-For other cases, see Master and ordinance here in question as invalid, and Servant, Cent. Dis. § 1262; Dec. Dig. § 321.*]
"For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
5. MASTER AND SERVANT (§ 332*)-INDEPEND- 110. EVIDENCE (8 472*)-OPINION EVIDENCE
ENT CONTRACTORS—ACTIONS AGAINST-QUES ENDANGERING USE OF SIDEWALK.
generally necessary to erect barriers on the The question whether an injury might rea- sidewalk to prevent persons from using it sonably have been anticipated by the owner of when painting from a suspended stage, and that a building abutting on a public street as a he had never seen a man fall from a stage, his probable consequence of work, such as painting opinion as to whether the suspension of the and repairing, which he has done by an inde- stage above the sidewalk made the sidewalk pendent contractor is generally a question of dangerous or more dangerous was incompetent, fact for the jury.
since it was the very question the jury had to [Ed. Note.-For other cases, see Master and decide on all the evidence in the case. Servant, Cent. Dig. SS 1274–1277; Dec. Dig. S [Ed. Note.-For other cases, see Evidence, 232.*]
Cent. Dig. 88 2186-2195, 2248; Dec. Dig. 6. MASTER AND SERVANT (8 330*)-ACTION FOR
472.*] INJURY PRESUMPTION AND BURDEN OF 11. APPEAL AND ERROR ($ 1056*)_HARMLESS PROOF.
ERROR-ADMISSION OF EVIDENCE. Plaintiff, in an action for injury from being The exclusion of such opinion, if error, struck by an independent contractor who fell was harmless, where it appeared that the from a painter's stage suspended from defend- witness had seen a man fall from a different ant's building over the sidewalk, by reason of kind of scaffold, which fact would not have his negligent fastening of the guy ropes, had aided the jury in determining whether there the burden of showing that defendant owner was any reason for defendant to anticipate inwas guilty of negligence; and the mere fact jury from the falling of a man from a staging that the contractor fell and injured him would such as was used in the present case. not justify an inference of defendant's negli
[Ed. Note. For other cases, see Appeal and gence.
Error, Cent. Dig. $$ 4187-4193, 4207; Dec. [Ed. Note. For other cases, see Master and Dig. $ 1056.*] Servant, Cent. Dig. $$ 1270-1272; Dec. Dig. $ 330.*]
Appeal from Baltimore City Court; Henry 7. MASTER AND SERVANT (8 330*)—ACTION FOR D. Harlan, Judge.
INJURY – PRESUMPTION AND BURDEN OF "To be officially reported."
Action by Carrie P. Weilbacher against the The maxim "res ipsa loquitur," meaning J. W. Putts Company. Judgment for defendthat, although there must be reasonable evidence of negligence, yet where the thing is ant, and plaintiff appeals. Affirmed. shown to be under the management of defend Argued before BOYD, C. J., and BURKE, ant or his servants, and the accident is such THOMAS, PATTISON, URNER, STOCKhappen if those in control use proper care, af- BRIDGE, and CONSTABLE, JJ. fords reasonable evidence, in the absence of
R. Lee Slingluff and Thomas Foley Hisky, explanation, that the accident arose from want of care, could not apply to the owner of a build- both of Baltimore, for appellant. Clarence ing who had no control over a contractor en- A. Tucker, of Baltimore (Samuel J. Harman, gaged in painting it, through whose negligence Charles H. Knapp, and Joseph N. Ulman, all plaintiff was injured.
of Baltimore, on the brief), for appellee. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $ 1270-1272; Dec. Dig. $ 330.*
THOMAS, J. This suit was brought to For other definitions, see Words and Phras- recover for injuries alleged to have been caus. es, vol. 7, pp. 6136-6139; vol. 8, p. 7787.]
ed by the negligence of the J. W. Putts Com8. MASTER AND SERVANT ($ 330*)-ACTION FOR pany, a corporation, the defendant below and INJURY-EVIDENCE.
In an action for damages by being struck appellee in this court, and, as the case was by an independent contractor who fell from a withdrawn from the jury at the close of the staging suspended over the sidewalk by rea- plaintiff's testimony, on the ground that there son of his own negligence in fastening the guy ropes, where the president of the defendant was no “evidence in the case legally sufficient owner testified for plaintiff that the contract to entitle the plaintiff to recover under the for painting was given to the contractor and pleadings,” it will be necessary to refer to that the owner had nothing to do with the the pleadings and evidence. work, did not employ the men engaged in it, or control the methods, the plaintiff had a right
The declaration contained three counts,
The to ask on redirect who owned the appliances each one of which was demurred to. used in the work, but not to inquire whether court below overruled the demurrers to the defendant took any precaution to safeguard first and third counts, and sustained the detravel on the sidewalk below; since the latter
The second question did not relate to any matter covered murrer to the second count. by the cross-examination.
count was amended, and the case was tried [Ed. Note.-For other cases, see Master and on the issues joined on the first, third, and Servant, Cent. Dig. $$ 1270-1272; Dec. Dig. Samended second counts, with the result 330.*]
stated. 9. MASTER AND SERVANT ($ 330*)-ACTION FOR
The first count alleges that the defendant INJURY - EVIDENCE RELEVANCY SIMILAR OCCURRENCE.
was, on the 25th of September, 1911, the ownEvidence as to whether witness had ever
er and in possession of the store and premknown paint buckets, brushes, or ropes to fall ises on the northwest corner of Park avenue from ladders or scaffolds used in painting and Fayette street, two of the public streets buildings was irrelevant and inadmissible.
[Ed. Note. For other cases, see Master and of Baltimore city, and, for the purpose of reServant, Cent. Dig. $8 1270-1272; Dec. Dig. pairing and painting the building, caused "a § 330.*]
large ladder or scaffold to be suspended from
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
the roof of said building, over and above the was at the top of the fourth floor of the buildsidewalk along said building on Park ave- ing, just outside of and about on a level with nue, in a negligent and unskillful manner, the cornice of a bay window which extended in that the defendant, its servants and beyond the building line and over the sideagents, neglected to make said scaffold fast walk. Zick and one of the employés of the by proper guy lines,” and that, as a result firm were on the stage, and Zick was kneelof such neglect, the ladder or scaffold slipped, ing with one knee on the stage and the other and one of the defendant's servants, who was knee on the top of the bay window, when the working on the ladder, was precipitated to rope slipped, one end of the stage was slightthe sidewalk, and, in falling, struck the plain- ly lowered, and Zick lost his balance and fell tiff, who was passing along the sidewalk, and to the sidewalk. The man on the stage with seriously and permanently injured her. Zick did not fall, nor did anything fall from
The amended second count charges that the stage, and the other employé of Crooks, the injury to the plaintiff was caused by the Zick & Co., who was painting from the cornegligence of the defendant, “its agents and nice above, testified that the lowering of one servants, in erecting, using, and operating end of the stage, which caused Zick to lose said ladder or scaffold, in that the defend his balance, was due to the fact that the guy ant, its agents and servants, in charge there- rope was "not tied tight enough”-that is, of negligently failed and omitted to properly, it was not taut—and that as soon as it was fasten said ladder or scaffold with guy lines," "stretched tight enough” the stage stopped ; by reason of which negligence the defend that shortly before the accident he was on ant's servant "slipped and fell from said the roof of the building and noticed that the ladder” to the sidewalk, and struck the plain- guy line was not "tied tight enough”; and tiff.
that when he went down he told Mr. Zick so. The third count avers that the defendant In falling from the stage Zick struck the caused the ladder or scaffold to be suspended plaintiff's foot as she was walking along the from the roof of the building over and above sidewalk, and seriously injured her. The the sidewalk for the purpose of painting the evidence further shows that the stage exbuilding; that the erection and use of the tended beyond the building line and over ladder or scaffold “endangered the travel" | the sidewalk; that the defendant knew of on the sidewalk, and that it became the duty the position of the stage, and did not erect of the defendant to "guard said work” and any barrier on the street or "rope the street sidewalk for the protection and safety of off" to prevent persons walking on the pavepersons using the sidewalk, which the de- ment under the stage; that defendant did fendant failed to do, and that by reason of not employ the men engaged in painting the said failure on the part of the defendant, building, had nothing to do with the methods the plaintiff, while passing along the side used in the performance of the work, did not walk, "was struck by the defendant's servant exercise any control "over the appliances, in falling from said ladder,” and seriously in- methods or men used or engaged in the jured.
work," and that the appliances belonged to It appears from the evidence in the case Crooks, Zick & Co. that the appellee owned, and was conducting, As we have said, the case was withdrawn a store in the building on the northwest cor- from the jury at the close of the testimony ner of Park avenue and Fayette street, two offered by the plaintiff, so that in reviewing of the public streets of Baltimore city, and that ruling we are dealing with the case as in August, 1911, contracted with Crooks, Zick presented by the pleadings and the plaintiff's & Co. for the painting of the outside or ex- evidence. terior wood and metal work of the building.  The first and amended second counts Crooks, Zick & Co. submitted a bid for the of the declaration declare that the injury work in writing on the 24th of August, and complained of was caused by the negligence the bid was accepted by the defendant ver- of the defendant's servants in failing to make bally. The building was six stories high, and the stage or scaffold fast by "proper guy the painting was done in the usual way from lines,” and in neglecting to "properly fasten” a "stage” or scaffold about 24 by 30 feet long the scaffold "with guy lines.” The evidence (which resembles a ladder in a horizontal shows that the accident was, as alleged, due position with boards on it), suspended on the to the fact that the guy lines were not propoutside of the building above the sidewalk erly fastened, or, as the witness expressed it, by ropes fastened to each end of the stage were not "tied tight enough,” but it also and attached to L-shaped hooks, which were shows that the work was not done by the hooked to the cornice of the building and kept defendant, but by Crooks, Zick & Co., who in place by guy lines extending over the roof contracted to do it and furnish the appliances and tied to a chimney. On the day of the and employed the labor for that purpose, and accident Zick, a member of the firm of that the defendant did not have supervision Crooks, Zick & Co., the contractors, and two of the work or any control over the men enemployés of the firm were engaged in doing gaged in it. The negligence of which the the painting. After working in the morning plaintiff complains in the first two counts they changed the position of the stage, so was not, therefore, the negligence of the de. that at the time of the accident the stage, fendant or its servants, but the negligence