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(139 Md. 313, 115 Atl. 59.) attached again on the other side; but vited by the defendant to enter upon according to the testimony of Alles the premises for the purpose of inthe accident occurred after the sling stalling the gas main, and that Alles had been passed under the beam was employed by the Variety Comand attached to the cable on the op- pany in the performance of that posite side, and after the signal had work, then it was the duty of the debeen given to the craneman to start. fendant to exercise reasonable care He says it occurred before the sec- for his safety while he was so ention of the main was lifted by the gaged. The second prayer was in crane from the floor of the cellar. the form of the usual damage pray

The plaintiff offered evidence er in negligence cases, and authortending to show that the beam that ized the jury to allow such damages fell had not been bolted to the as would be a fair and just compenbracket; that the pressure of the sation for the injuries sustained by cable on the beam was too light to Alles. The defendant offered four have displaced it had it been bolted; prayers, all of which were rejected. that the beams which were removed All of them sought to withdraw the by the employees of the Variety case from the jury; the first and Company had all been bolted and third on the ground that there was riveted, and that they had every rea- not sufficient evidence of negligence son to assume that the beam in ques- on the part of the defendant, the section was also bolted; that it was too ond on the ground that the work of dark in the basement for Alles to installing the floor beams was done notice that the beam was not bolted, by the Bridge Company, an indeand that there were boards and oth pendent contractor, for whose neglier material on top of the beams that gence the defendant was not liable, prevented the employees from seeing and the fourth on the ground of conthe ends of the beams resting on the tributory negligence on the part of brackets. The defendant, on the Alles. The only exception in the other hand, offered evidence tending record is to the court's ruling on the to show that the floor beams had prayers. been placed in position temporarily, In view of the evidence to which and that the work could not be com- we have referred, it is clear that the pleted until all the pipes. and ma- case could not have been withdrawn chinery in the celler had been in- from the jury on the ground that stalled, but that all of the floor there was no evidence of negligence beams had been bolted, and would on the part of the defendant, or on not have been sufficiently secure to the ground of contributory neglienable persons to walk or stand on gence on the part of Alles. The apthem unless they had been bolted. It pellant insists that the only evidence also appears from the evidence that in regard to the floor beams being Alles had been awarded compensa- bolted is the evidence adduced by the tion under the Workmen's Compen- defendant to the effect that all of the sation Act of this state (3 Code Pub. floor beams had been bolted by the Gen. Laws, art. 101) as an employee employees of the Bridge Company, of the Variety Company, and that but it overlooks the testimony of the Ætna Life Insurance Company, Alles, who stated that he was posias insurer of the Variety Company, tive that the beam that fell was not paid the compensation, amounting bolted or riveted, and the testimony to $420, and $93 for "medical ex- of other witnesses who were present penses.

at the time of the accident to the At the conclusion of the testimony same effect. The weight of this evithe plaintiff offered two prayers,

with that of the dewhich were granted by the court be- dence, as compared for jury on conlow. The first prayer was, in effect, fendant, was, of fiicting evian instruction that if the jury found course, a matter enthat the Variety Company was in- tirely for the jury. In case of Kann & Co. v. Meyer, 88 Md. 541, 41 Atl. mined by considering all the attend1065, 5 Am. Neg. Rep. 152, Judge ing and surrounding circumstances Briscoe, quoting from Cooley on of the transaction, it falls within the torts, 718, said: “If one expressly province of the jury to pass upon or by implication invites others to and characterize it, and it is not for come upon his premises, whether for the court to determine its quality as business or for any other purpose, matter of law." it is his duty to be reasonably sure And in the case of Winkelmann that he is not inviting them into & B. Drug Co. v. Colladay, 88 Md. danger, and to that end he must ex- 78, 40 Atl. 1078, 4 Am. Neg. Rep. ercise ordinary care and prudence to 645, it was said to be the well-setrender the premises reasonably safe tled rule “that unless there is some for the visit. And this rule obtains prominent and decisive act, in reand is recognized in both the Eng- gard to the effect and character of lish courts and in the courts of this which no room is left for ordinary country.”

31 A.L.R.-65.


minds to differ, courts will not withNor was there sufficient evidence draw the case from the consideraof want of care or prudence on the tion of the jury." This rule has part of Alles to justify the court been so frequently stated in this in saying, as a matter of law, that state that further reference to the he was guilty of contributory neg- cases is unnecessary. ligence. He had assisted in mov- The contention more seriously

ing the floor beams urged by the appellant is that the -question of contributory in order to lower work of placing the floor or I beams negligence.

the sections of the in position was done by the Bridge gas main into the cellar or base- Company, an independent contracment, and, according to his testi- tor, and that the defendant is not mony, had found them all bolted liable for any negligence of the and riveted, and the evidence of Bridge Company in the performance the defendant is that that is the of that work. The evidence shows usual and only safe way to leave that the work done by the Bridge them, even when they are placed in Company was commenced in 1917, position temporarily. The basement and was completed as far as was dewas not well lighted, and boards and sired by the defendant in the winter other material lying on the beams of 1917-18, and was then suspended obstructed the view of the brackets and accepted by the defendant, who when he was standing on or above resumed possession of the building the floor beams. Whether the exer- until the spring of 1919, when it cise of due care required him, under notified the Variety Company that it all the circumstances of the case, to was ready for that company to procarefully examine each beam to see ceed with the work of installing the that it was properly bolted before gas main under its contract. The going under it for the purpose of as- cases of Deford v. State, 30 Md. 179, sisting in attaching the sling to the City & Suburban R. Co. v. Moores, , cable hook, was a question that the 80 Md. 348, 45 Am. St. Rep. 345, 30 defendant might, by a proper pray- Atl. 643, Smith v. Benick, 87 Md. er, have submitted to the jury, but 614, 42 L.R.A. 277, 41 Atl. 56, Denot one to be determined by the cola v. Cowan, 102 Md. 551, 62 Atl. court. In the case of Cooke v. Bal- 1026, and Weilbacher V. Putts Co. timore Traction Co. 80 Md. 551, 31 123 Md. 249, 91 Atl. 343, Ann. Cas. Atl. 327, 12 Am. Neg. Cas. 11, the 1916C, 115, quoted and referred to court said: "Where the nature and by the appellant, are illustrations of attributes of the act relied on to the familiar doctrine relied on. But show negligence contributing to the there are well-established exceptions injury can only be correctly deter- to the rule, and one of them is that



struction work effect.

(139 Md. 313, 115 Atl. 59.) a person or corporation on whom the cannot relieve himself from liability

law imposes a posi- to the extent of that duty, by comMaster and serv- tive duty cannot mitting the work to a contractor.'liability by em- avoid liability for As we have said, the work of the ploying con

failure to perform Bridge Company had been completed

that duty by em- as far as desired by the defendant, ploying a contractor for that pur- in 1917 or 1918, and the building pose. This exception is clearly and was under control of the defendant forcibly stated by Chief Judge Boyd when it notified the Variety Comin Bernheimer Bros. y. Bager, 108 pany proceed Md. 551, 129 Am. St. Rep. 458, 70 with its work, and acceptance of Atl. 91, where it was said: “It the facts of the case would be carrying the doctrine of bring it clearly independent contractor beyond what within the exception stated. In 14 the law authorizes to permit an R. C. L. p. 86, § 22, it is said: “Genowner of property to thus insecurely erally speaking, as soon as the conerect a dangerous instrument over trol of the subject-matter of the where his employees were to work, contract has been transferred to the and then escape the result of his employer, as a result either of the negligence by letting the work to be completion or stoppage of the work, done to a contractor. The appel- he incurs the responsibilities which lants were under obligation to use the law attaches to the exercise of reasonable care in protecting their the control; and the mere fact that servants while they were engaged in the dangerous conditions which the work, and could not thus shift caused the injury were originally the responsibility. The general rule created by the negligence or other as to independent contractors is thus tortious act of a contractor will not qualified by the authorities: 'A per- afford him any protection, if he person or corporation on whom positive mits them to continue after it is in duties are imposed by law cannot his power to remove them." avoid liability for injuries resulting The only remaining question to be from failure to perform such duties, considered is the right of the plainby employing a contractor for the tiff to maintain the suit. The appelpurpose; nor, in such a case, is the lant says in his brief that the suit fact that the injuries resulted from was originally brought in the name the contractor's negligence a de- of the Variety Company, the insurfense.' 16 Am. & Eng. Enc. Law, ance company, and Harry Alles, and 197. Illustrations of that rule are the agent of the insurance company given, and on page 199 of that testified that the "suit was started volume it is said: 'A master's duty by the Ætna Life Insurance Comto furnish to his employees a safe pany and Harry Alles." The docket place to work cannot be delegated to entries show, however, that the suit an independent contractor.' This was brought on the 6th of February, court has announced similar views 1920, and that on motion of the in several cases. In City & Subur- "plaintiff" made in open court on ban R. Co. v. Moores, 80 Md. 348, January 18, 1921, the "plaintiff” after citing Deford's Case, 30 Md. was permitted, apparently without 179, and O'Donnell's Case, 53 Md. any objection, to amend the "cap110, 36 Am. Rep. 395, we referred to tion" and declaration, by interlineaSt. Paul Water Co. v. Ware, 16 Wall. tion, by adding "for the benefit of" 566, 21 L. ed. 485, where the ques- in two places, so as to make the suit tion is fully discussed, and added appear as brought by the Variety that there were many cases in this Company for the benefit of the incountry and England to the effect surance company and Harry Alles, that 'when the employer owes cer- and that on the same day the defendtain duties to third persons or to the ant filed the general issue plea, issue public in the execution of a work, he was joined, and the jury sworn. Up


on this state of the record we must nity from the person so liable to pay treat the suit as having been damages as aforesaid, and shall be brought in the name of the Variety subrogated to the rights of the emAppeal-form of Company, for the ployee to recover damages thereaction-amend- benefit of the insur- for." of caption.

ance company and In construing that act the suHarry Alles, and the question arises preme court of Illinios said that 883 whether it can be maintained under and 17 should be construed together, the terms of the Workmen's Com- and that "paragraph (b) provides pensation Law of this state, Harry that if the employee has recovered Alles having previously claimed and compensation the employer may be been awarded compensation under entitled to indemnity from the perthat act by the State Industrial Acci- son liable to pay damages and shall dent Commission. This question be subrogated to the rights of the was raised in the case of Hyde v. employee to recover damages. He Blumenthal, 136 Md. 445, 110 Atl. is not entitled, however, to more 862, where the suit was brought in than indemnity out of the damages the name of the employer, “for the recovered and the subrogation must use of" the insurance company and be limited to that amount. The the injured employee, but was not amount of recovery, however, is not decided because the judgment re- so limited." Houlihan v. Sulzbergcovered by the plaintiff was re- er & Sons Co. 282 Ill. 76, 118 N. E. versed, without a new trial, on other 429. grounds. The precise question was Section 29 of the New York Act not raised or considered by the court (Consol. Laws, chap. 67, as amended in Hagerstown v. Schreiner, 135 Md. by Laws 1914, chap. 41) required 650, 109 Atl. 464, where the suit was the employee, or his dependents, to instituted and judgment recovered elect to take compensation under the by the widow and children of the act or to pursue his remedy against deceased employee, after having the negligent person, and further been awarded compensation under provided : “If he elect to take comthe act, and where the court held pensation under this chapter, the that their election to accept com- cause of action against such other pensation under the act was a com- [person guilty of negligence] shall plete bar to any further suit by be assigned to the state for the benethem.

fit of the state insurance fund, if The statute of Illinois (Laws compensation be payable therefrom, , 1911, p. 314) provided, in $ 3: “No and otherwise to the person or ascommon-law or statutory right to sociation or corporation liable for recover damages for injury or death payment of such compensation." sustained by an employee while en- Construing this section, the sugaged in the line of his duty in such preme court of New York said: employee other than the compensa- "The Workmen's Compensation Law tion herein provided shall be avail- takes no rights from the injured able to any employee who has ac- employee which otherwise he would cepted the provisions of this act or have had against a third party. Into anyone wholly or partially de- stead, it gives him an additional pendent upon him or legally re- right, namely, the right to compensponsible for his estate."

sation from his employer. He can Subsection (b) of § 17 of that act elect to accept the compensation contained the following provision: under the statute, or he can sue “(b) If the employee or beneficiary the third party as though the Workhas recovered compensation under men's Compensation Law did not this act, the employer by whom the exist. .

If he elect to take compensation was paid or the per- compensation then he cannot latson who has been called upon to pay er sue the third party whose neg. the indemnity under $$ 4 and 5 of ligent act injured him... In this act, may be entitled to indem- that event his claim against the


sation Act.

(139 Md. 313, 115 Atl. 59.) third party is assigned to the per- covered in excess of the compensason paying the compensation by tion already paid or awarded to be virtue of the provisions of § 29 paid under this article, then any of the statute. That party may then such excess shall be paid to the insue the wrongdoer and may re- jured employee or, in case of death, cover in the same manner as the in- to his dependents, less the employjured employee could have recovered er's expenses and costs of action.” had he brought suit against the The liability which the employer wrongdoer. And the amount that is thus authorized to enforce is the may be so recovered is not limited to liability of such third person," and the amount paid as compensation. the only liability of "such third per

.. Paying the compensation, the son" referred to in the act is the liaemployer may then sue the wrong- bility for for "damages," which the doer, and all that is recovered above injured employee could have enthe amount paid as compensation is forced had he elected to do so. This for the benefit of the injured em- liability is not limited by the act ployee.” Louis Bossert & Sons v. to the compensation awarded or Piel Bros. 112 Misc. 117, 182 N. Y. paid, but, on the contrary, the act Supp. 620.

clearly indicates that no such limiSee also Casualty Co. of America tation was intended, and, followV. A. L. Swett Electric Light & P. ing the reasoning and decision of Co. 174 App. Div. 825, 162 N. Y. the cases referred to, it seems clear Supp. 107.

that the legislature The Illinois act, so far as the pres- intended the same against a third ent question is concerned, is very measure of recovery person for inmuch like § 57 of the Maryland act to apply as would under compen($ 58, art. 101, vol. 3 of the Code) have applied had prior to its amendment by chapter the injured employee elected to pur456, of the Acts of 1920. The Illi- sue his remedy against the neglinois act provided that the employer gent third person. should be "subrogated" to the rights The fact that the suit is in the of the employee to recover damages, name of the employer, for the benewhile the Maryland act provided fit of the insurance company and the that "if compensation is claimed injured employee, and awarded or paid under this Harry Alles, if not Action-formarticle any employer may enforce in strict compliance for the benefit of the insurance com- with the statute, is immaterial, as pany, or association carrying the the act expressly directs the applicarisk or the state accident fund, or tion of the amount recovered. himself, as the case may be, the lia- Finding no error in the ruling of bility of such third person; pro

the court below, the judgment apvided, however, if damages are re- pealed from will be affirmed.

ANNOTATION. Independent contractor: extent of the employer's liability after he has as

sumed control of the subject matter of the stipulated work, § 1. General doctrine regarding the em- liability of the employer for injuries ployer's liability, 1029.

caused by the dangerous condition of § 2. Illustrative decisions, 1032.

the product of the stipulated work, $ 3. Necessity of showing that the employer had notice of the dangerous

after it had passed under his control, conditions which caused the injury was predicated upon one or other of complained of, 1042.

the following grounds: (1) That the $ 1. General doctrine regarding the em

dangerous condition was a direct and ployer's liability.

necessary result of the contractor hav. In earlier monographs, numerous ing executed the work in the manner cases have been reviewed in which the prescribed by the provisions of the

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