contract (see 21 A.L.R. pp. 1229 et seq.); (2) that the employer was chargeable with a non-delegable duty in respect of seeing that the dangerous condition did not supervene (see 23 A.L.R. pp. 984 et seq., and 29 A.L.R. pp. 736 et seq.); and (3) that the dangerous condition was attributable, either wholly or in part, to the negligence or other misconduct of the employer himself during the progress of the work (see 30 A.L.R. pp. 1502 et seq.). In the present monograph it is proposed to deal with the cases in which the gravamen of the alleged cause of action was personal fault on the employer's part, after the contract had been completely performed, but which are not assignable to any of the categories above specified.

The general doctrine deducible from the decisions may be thus stated: When the control of the subject-matter of the contract has been transferred to the employer as a result either of the completion or the stoppage of the stip

1 "If one employs a contractor to do a work not in its nature a nuisance, .but when completed it is so, by reason of the manner in which the contractor has done it, and he accepts the work in that condition, he becomes at once responsible for the creation of the nuisance, upon a principle very similar to that which makes a principal responsible for unauthorized wrongs committed by his agent, by ratifying them." Vogel v. New York (1883) 92 N. Y. 10, 44 Am. Rep. 349.

"The Pennsylvania rule, deducible. from all the cases, is that if the employer, at the time he resumes possession of the work from an independent contractor, knew, or ought to have known or from a careful examination could have known, that there was any defect in the work, he is responsible for any injury caused to a third person by defective construction." First Presby. Congregation v. Smith (1894) 163 Pa. 561, 26 L.R.A. 504, 43 Am. St. Rep. 808, 30 Atl. 279 (sewer). See also Berberich v. Ebach (1889) 131 Pa. 165, 18 Atl. 1008 (stone foundation bulged, and brick wall which rested on it fell upon the adjoining premises); Chartiers Valley Gas Co. V. Lynch (1888) 118 Pa. 362, 12 Atl. 435 (rule recognized, but its applicability was denied, as no con

ulated work, he becomes subject to the responsibilities which the law attaches to the exercise of that control; and the mere fact that the dangerous conditions which caused the injury were originally created by the negligence or other tortious conduct of the contractor will not afford him any protection, if he permits them to continue after he has notice, actual or constructive, of their existence.1

If the defect in work accepted from the contractor was caused, after its completion, by the manner in which other work, not embraced in the contract, was done by the workmen of the employer, this fact is sufficient to render the employer liable for the injury, although his workmen were superintended in the work by the contractor.2

Whether the work has been accepted in such a sense as to render the employer responsible thenceforward for the condition of the subject-matter is to be determined from the circumstances in evidence.3 There is austructive knowledge was shown). 2 Berberich v. Ebach (Pa.) supra. 3 Where the general contractor for the construction of a building has sublet the work of building the walls, the fact that he used the walls for the purpose of doing the woodwork upon the building, and paid the subcontractor for the material furnished and work done by him, is strong evidence to show that he accepted the walls as a performance of the subcontract, and that the character of both work and materials was satisfactory to and sanctioned by him. Bast v. Leonard (1870) 15 Minn. 304, Gil. 235.

In Burger v. Philadelphia (1900) 196 Pa. 41, 46 Atl. 262, where plaintiff was injured by sinking into the unpaved surface of a sewer trench, the evidence showed that the sewer inlet had been completed nearly three weeks before the accident; that the street had been thrown open during this time to public use; and that the contractor had left it and gone to other work. But the surface of the trench had not been repaved; and the contention of the city that the work had not been completed was based upon that fact alone. Discussing this claim the court said: "Generally under the contract it was the duty of the contractor to repave the part

thority for the proposition that such responsibility may be predicated on the ground of a partial control exercised while the work was still in progress. Acts from which the assumption of a practical control over the subject-matter of the contract in a virtually completed condition is inferable will render the employer chargeable with the same measure of respon

of the street which he had torn up, but in this matter, as in all others, he was subject absolutely to the directions of the chief engineer. He was not, as will be shown hereafter, to do a particular piece of work for a fixed price, but to do such work as was directed, at a price agreed upon for each particular kind of work required. The city inspector testified that the work had been completed nineteen days before the accident happened, and in explaining why he spoke of it as completed while the surface remained unpaved, he said that the whole street had to be paved. The paving of the whole street was not the work of the contractor, and it may fairly be inferred from the testimony that the city did not direct the paving over of the trench, for the reason that it intended to repave the whole surface of the street. If this was the case, the jury might well find that the work had been completed by the contractor and accepted by the city."

The

4 In Lebanon Light, Heat & P. Co. v. Leap (1894) 139 Ind. 443, 29 L.R.A. 342, 39 N. E. 57, a contractor who had undertaken to construct a natural gas plant for a lighting company employed for the drilling of the gas wells a subcontractor, who was to have the privilege of using for drilling purposes the gas obtained from the wells as they were from time to time completed, such gas to be piped at his own expense, except that the principal contractor was to supply the pipe. gas, which was conveyed in pipes laid along a highway to the successive places where the wells were drilled, was turned during the progress of the work into defectively joined pipes, from which it escaped and caused an explosion, by which a passer-by was injured. The evidence showed that the subcontractor's workmen had put the pipes together and laid them on the highway, but that at the time of the accident the principal contractor had assumed the duty of taking care of

sibility as a formal acceptance of the results.5

The general doctrine is, of course, applicable to a case in which the product of the work of a subcontractor is taken over by the principal contractor, and the latter is the party whom it is sought to hold liable for the injury in question."

them. The lighting company, the contractor, and the subcontractor were all held liable for the resulting injury, the right of action against the company being predicated upon the ground that, although the contract for the construction of its plant had not been completed, or the plant turned over, when the accident occurred, it was actually using the gas from the wells. already drilled.

5 On this ground one who had filled and used a standpipe for supplying water to his customers was held liable for the flooding of the premises of an adjoining owner in consequence of the collapse of the standpipe, although the contractor was at the time trying to remedy a defect therein, so as to make it acceptable to the employer. Read v. East Providence Fire Dist. (1898) 20 R. I. 574, 40 Atl. 760, 4 Am. Neg. Rep. 589.

In Taylor v. Winsor (1909) 30 R. I. 44, 73 Atl. 388, where the plaintiff's horses were frightened by the fall of a pile of wood left on a highway by a contractor employed to draw it from the place where it was cut, resulting in injuries to plaintiff, the evidence showed that before the accident occurred the owner of the wood knew that a portion of it had fallen into the highway, and had given orders to his teamsters to remove some of the wood from the top of the pile, in order to obviate danger from this cause. Held, that the owner was liable for the injuries which resulted from the frightening of the horses, because he had, "without formally accepting the work, stepped in and assumed practical control of the structure by appropriating it to the use for which it was erected. And by so doing-as to third persons, at any rate-it treated the structure as its own and became responsible for injury therefrom to the same extent as if there had been a formal acceptance thereof."

6 In Charles A. Cowen & Co. v. Price (1913) 121 C. C. A. 618, 203 Fed. 473,

$ 2. Illustrative decisions. The conditions or occurrences with reference to which the doctrine stated in the preceding section has been applied are as follows:

Adjacent premises were injured, owing to the defective construction of a portion of a building.1 In the cases cited it seems to have been taken for granted that the responsibility of the employer supervened from the moment that his acceptance of the result of the stipulated work became effective, where the plaintiff was held entitled to recover for injuries caused by the breaking of a step at the end of a temporary bridge laid over an excavation in a street, the court reasoned thus: "The duty of the subcontractor ended when a safe and properly constructed bridge was completed. Thereafter the general contractor undertook the duty of its inspection and maintenance. After the bridge was accepted by the general contractor, that corporation assumed the responsibility of keeping it in repair, and was responsible for its condition. If it permitted the structure to get into a dangerous condition so that it became a menace to pedestrians passing along one of the principal streets of the city, the contractor was guilty of negligence. The defendant contends that the general contractor had discharged his full duty when he employed a competent subcontractor to construct the bridge, and if a safe bridge were thus built the duty of the general contractor was done. This contention in effect releases both contractors from liability: The subcontractor, because he has done the work which he was employed to do, his work has been accepted and paid for, and he has been discharged; the general contractor, because, when he accepted the bridge, it was properly built and in a safe condition. We think such a rule leaves out of sight the obligation which a general contractor owes to the public. For the time being he is in entire charge of the premises and the work thereon, and it is his duty to see not only that the sidewalk is in a safe condition when completed, but also, by careful inspection and constant diligence, he should see that it is kept in such condition. Otherwise the public, who have a right to assume that the city streets may be safely traversed, will

and was predicable, irrespective of whether he was or was not chargeable with notice of the defects which caused the injury complained of. A responsibility of this character and scope must obviously be regarded as resting either upon the notion of a positive, non-delegable duty arising from the ownership or occupancy of the premises with relation to which the work was performed, or upon the notion of an absolute liability inferred from the fact that the result of the be left without redress if they are injured. A contractor who has occasion to construct a bridge in a crowded thoroughfare may build it himself, or he may employ someone else to build it. His duty does not, however, end when a suitable and safe structure has been furnished; he must see that it remains so, and is liable if he fails to discover and remedy an obvious defect, and injury results therefrom."

A principal contractor who receives a structure in defective condition from a subcontractor makes it his own work, and is jointly liable with the subcontractor for injuries caused by its defects. Carey v. Courcelle (1865) 17 La. Ann. 108, distinguishing Peyton v. Richards (1856) 11 La. Ann. 62, as being a case in which the product of the work had not yet been delivered.

See also Lebanon Light, H. & P. Co. v. Leap, reviewed in note 4, supra.

1 In Gorham v. Gross (1878) 125 Mass. 232, 28 Am. Rep. 234, it was laid down that an owner of land, who makes a contract with a firm of masons by which the latter are to furnish all the materials and labor in building a party wall, half on his land and half on the land of an adjoining owner, is liable in tort to such adjoining owner, after the wall has been completed and accepted, for an injury to his property by the fall of the wall, resulting from its defective and unsafe condition, whether owing to his own negligence or to that of the masons. The court said: "Assuming that the relation of the masons to the defendants was that of contractors, the former alone would be responsible to a third person for any injury caused by their negligence in a matter collateral to the contract, as, for instance, in depositing materials, handling tools, or constructing temporary safeguards, while doing the work;

but where the very thing contracted to be done is improperly done, and causes the mischief upon the land of another, the employer is responsible for it; at least, when it occurs after the structure has been completed to his acceptance. There was evidence tending to show that the fall of the wall was occasioned by negligence in building it without sufficient stays or supports, or in building it in such cold weather that the mortar froze as soon as laid, and was afterwards softened by a sudden thaw. The jury were instructed that, if the accident was caused by such negligence, the defendants would be liable, although it was the negligence of the masons in executing their contract. We are of opinion that this instruction was sufficiently favorable to the defendants. . . . The present case does not require us to decide whether it is more accurate to say that it is not a question of negligence, and that the defendant is liable even in case of latent defect; or to say that the fall of the wall, in the absence of proof of inevitable accident, or of the wrongful act of third persons, is sufficient evidence of negligence. See Ball v. Nye (1886) 99 Mass. 582, 97 Am. Dec. 56, and Shipley v. Fifty Associates (1870) 106 Mass. 194, 8 Am. Rep. 318, above cited; Kearney v. London & B. & S. C. R. Co. (1870) L. R. 5 Q. B. (Eng.) 411, affirmed in (1871) L. R. 6 Q. B. 759, 40 L. J. Q. B. N. S. 285, 24 L. T. N. S. 913, 20 Week. Rep. 24, 19 Eng. Rul. Cas. -Exch.; Mullen v. St. John (1874) 57 N. Y. 567, 15 Am. Rep. 530. As was well observed by Lush, J., in Tarry v. Ashton, negligence is a relative term, depending upon the question, What is the duty of the defendant? (1876) L. R. 1 Q. B. Div. 318, 45 L. J. Q. B. N. S. 260, 34 L. T. N. S. 97, 24 Week. Rep. 581, 19 Eng. Rul. Cas. 4. In the case at bar, the jury, under the instructions given, must have found negligence, either in the defendants themselves, or in the masons employed by them to build the wall."

In Cork v. Blossom (1894) 162 Mass. 330, 26 L.R.A. 257, 44 Am. St. Rep. 362, 38 N. E. 495, where adjoining premises were injured by the fall of a chimney on those of the defendant, his liability was affirmed on grounds thus stated: "Parties erecting upon their own land chimneys, or walls, or other structures, so situated that they

may fall upon and injure the persons or property of others, are bound, at their peril, to use proper care in their erection and maintenance. By 'proper care' is meant such degree of care as will prevent injuries from any cause except those over which the party would have no control, such as vis major, acts of public enemies, wrongful acts of third persons, and the like, which human foresight could not reasonably be expected to anticipate and prevent. If, for instance, one chooses to build upon quicksand a structure so near the line that, if it falls, it will fall upon and injure the adjoining premises, or to hang out a lamp over the highway, it is reasonable and just that he should be bound, at his peril, to use all known devices to make the foundation secure, or keep the lamp from falling. The duty thus resting upon the defendants was one which they could not fulfil by the employment of a competent mason to examine the chimney, and by relying upon his opinion. As far as it went, it was an absolute duty; and nothing short of actual performance of it, or a fall of the chimney due to some one of the excepted causes, would excuse them. It is almost needless to add that the fall of the chimney, unless caused by some one or more of the excepted causes, naturally would lead to the inference of an omission of duty in building or maintaining it." This passage was quoted with approval in Goodwin v. Mason (1916) 173 Iowa, 546, 155 N. W. 966.

In Cleghorn v. Taylor (1856) 18 Sc. Sess. Cas. 2d series, 664, where a chimney can fell through a skylight in the adjoining house and damaged the plaintiff's property, and it appeared that the accident was due to the unskilful manner in which the can had been attached by the master tradesman employed to erect it, the judges held that the controlling principle in the case was that every proprietor is bound to keep his property in such a condition that it shall not be a cause of injury to others. Whether, therefore, the tradesman was a mere servant, as was the opinion of most of the judges, or a contractor, the defendant was liable, for the reason that the work had been completed and given over to him, and that he had become, after such completion, as much responsible for the insecure condition

complainants. As a general rule the liability of an employer is conditional upon proof of his knowledge, actual or constructive. See § 3, infra.

of the chimney can as for the ruinous state of any other part of his premises, supposing an injury to have resulted therefrom to a coterminous proprietor. Lord Wood remarked that in all the English and other cases cited, in which the employer had been relieved from liability, the injury had been caused by the tortious act of the contractor during the progress of the work, and while as yet the subject-matter, so far as the work was concerned, might be said to have been in the possession of the contractor and his servants, for the purpose of being carried on and completed, and under his independent control. The learned judge then proceeded as follows: "It seemed to be considered extravagant to suppose that by the completion of the work, and the reception of it by the principal, any liability should attach to him for loss caused by its having been executed in an insecure and insufficient manner; but it appears to me to be the more unreasonable position to maintain that the original obligation of the proprietor should not have effect, after a work which a tradesman has been employed to perform has been finished and is out of his hands, and the whole subject, with that work as a part of it, is again in the uncontrolled use and occupancy of the proprietor. When that takes place, I apprehend that the sound view is that the proprietor stands, with reference. to his coterminous proprietors, in the same situation as to his whole property, without exceptions of any repairs or alterations that may have been made upon it, and that if, by the imperfect or insecure execution the latter, loss is caused to an adjoining property, he is responsible just as much as he would be had it been caused by defect or insecurity in any part of his premises. In any other view, after several different repairs or improvements of a property have been made, the subject as regards any claim for damages caused by their insecure and imperfect execution, would stand (for years, it might be) with as many separate responsibilities as there were separate and distinct pieces of work done by separate tradesmen, the proprietor all the while remaining free from all responsibility.

of

Property adjoining that of the employer was flooded by reason of defects in a structure,2 or an obstruction of surface water consequent upon the I think such a state of things would be inconsistent with justice, and with every consideration of general policy and convenience." Lord Cowan, referring to the fact, upon which stress had been laid, that the work had been completed only about a month before the accident occurred, remarked that this plainly could not affect the principle of liability.

In Lamb v. Phillips (1911) 11 N. S. W. St. Rep. 109, where the roof of the defendant's house was blown off, in consequence of its having been negligently constructed by the builder, and damaged the plaintiff's premises, the defendant's liability was affirmed on grounds thus stated: "I think the law is that an owner of property who puts on his land a structure, whether a house, or chimney, or any other erection, is liable for damage caused to his neighbor by that structure falling upon the latter, unless he can show that such falling and consequent damage were caused by vis major, or by the act of the plaintiff, or by the act of some stranger, or from some other cause over which he had no control, and which he was powerless to prevent. I do not think it is any answer in such a case for the owner, or occupier, to say, "The structure was erected by a competent builder, who was an independent contractor, and I personally was guilty of no negligence; the damage was caused not by any vis major, or any other cause above mentioned, but because the builder negligently and faultily carried out the work confided to his care.' This law seems to me to be recognized in the case of Nichols v. Marsland (1875) L. R. 10 Exch. (Eng.) 255, and also in the case of Gorham v. Gross (1876) 125 Mass. 232, 28 Am. Rep. 224." The court relied on the following remarks, made by Bramwell, B., arguendo, in Nichols v. Marsland: "A man may use all care to keep the stack of chimneys standing, but would be liable if through any defect, though latent, the bricks fell."

2 In Watts v. Atlanta, B. & A. R. Co. (1912) 179 Ala. 436, 60 So. 861, where the defendant railroad company was held liable for the flooding of plaintiff's land by reason of defects in a culvert, the court said: "The defects