Eaton v. European & Northern Railway Co. ble. So in the case at bar, the negligent or tortious acts of the subcontractors or of their servants were not the acts of the defendants, and if not their acts, nor done by their procurement, the sub-contractors, or the servants committing them, alone are liable. In conformity with these views are the decisions in this country. In Blake v. Ferris, 5 N. Y. 48, it was held that the defendants, who had a license from the city of New York to construct at their own expense a sewer in a public street, and who had engaged another person to do it by contract, to construct it at a stipulated price for the whole work, were not liable to third persons for any injury resulting from the negligent manner in which the sewer was left at night by the workmen engaged in its construction. The doctrine there held was, that the immediate employer of the servant, whose negligence occasions the injury, is alone responsible for the negligence of such servant. These views were affirmed in Pack v. Mayor, etc., of New York, 8 N. Y. 222. In Kelly v. Mayor, etc., of New York, 11 id. 432, the corporation of the city of New York had ordered a street to be graded, and contracted with a person to do the grading. It was held that they were not liable for damages occasioned by the negligence of the person who had contracted to do this work, or of the laborers in his employ. In Clark v. Vermont and Canada R. R. Co., 28 Vt. 103, and in Pawlet v. The Rutland and Washington R. R. Co., 28 id. 297, it was held that the defendants were not liable for the negligent or tortious acts of the servants of those who had contracted to do certain work for these corporations; that no privity existed between such servants and the corporations. "Though it may be assumed in the case before us," remarks BENNET, J., in the last-named case, "that a public nuisance had been committed by the servants of the sub-contractor, and a particular injury has resulted therefrom to Phelps, and for which the town of Pawlet had been compelled to make satisfaction, yet we cannot discover any privity existing between the defendants and the employees of the sub-contractor. The contract made for the building of the abutments to the bridge was for a lawful purpose, and in no way involved the commission of a wrong, and the employees of the sub-contractor were not the servants of the defendants nor under their control." In Cuff v. The Newark and New York R. R. Co., 9 Am. Law Reg. N. S. 541, the question under discussion was very carefully considered and examined by the supreme court of New Jersey, and with like conclusions. "The rule is now firmly VOL. VIII.-55 Eaton v. European & Northern Railway Co. established," remarked DEPUE, J., "that when the owner of lands undertakes to do a work which, in the ordinary mode of doing it, is a nuisance, he is liable for any injuries which may result from it to third persons, though the work is done by the contractor exercising an independent employment and employing his own servants. But when the work is not in itself a nuisance, and the injury results from the negligence of such contractor or his servants in the execution of it, the contractor alone is liable, unless the owner is in default in employing an improper and unskillful person as the contractor." In Callahan v. Burlington & Missouri River R. R. Co., 23 Iowa, 562, the plaintiff sought to recover compensation for damage done to his timber, and by a fire negligently set by by the employee of a sub-contractor with the defendant corporation, for the purpose of clearing the way of trees, logs, brush, and rubbish. The contract provided that the way should be cleared of all trees, etc., by removal or burning, as the engineer should direct, before the grading should be commenced. The engineer ordered the burning, which, by the negligence of the person who set the fire, escaped on the plaintiff's land, doing there much injury, and the question presented was whether the railroad corporation was responsible for the negligence of a servant of a sub-contractor. In delivering the opinion of the court, BECK, J., says: "If the person sought to be charged under the rule as employer did not contract with the party committing the wrongful act for his labor or services, and is not directly liable to him for compensation for such labor or services, and has no such control over him as will enable the employee to direct the manner of performing the labor or services, he is not liable for the wrongful act of the agent or servant. In order to create the liability, it is especially necessary that the control of the employee over the servant should be of such a character as to enable him to direct the manner of performing the services, and to prescribe what particular acts shall be done in order to accomplish the acts intended." The same views have received the sanction of the highest judicial tribunals in Ireland. In Gilbert v. Halpin, 3 Irish Jurist, N. S. 300, the plaintiff, as owner of the schooner Paddy, brought an action against the defendant as secretary to the commissioners empowered to improve the harbor of Wicklow, to recover damages for its loss by reason of the negligence of commissioners, who had caused to be placed certain piles, etc., and neglected to place, or caused to be Eaton v. European & Northern Railway Co. placed, any light, or to use any other reasonable precautic to guard vessels from being driven thereon. The defendants pleaded, among other pleas, that they committed the execution of the work to their contractor, John Killien, and that at the time, etc., the said piles were still in the possession and under the control of the said Killien. GREEN, B., in delivering his opinion, says: "I think the case falls within the rule that the contractor, and not the employee, ought to be liable." "There is a plain difference," remarks RICHARDS, B., "between the case of master and servant, and that of employee and contractor. The employee was authorized to perform the work, and he authorized the contractor. No man would drive down piles in a navigable river, without being authorized. Therefore, I think it was the contractor's duty to have apprised his employer that this work had come to such a stage that it was necessary to get lights to prevent accidents. It was not to be expected that the commissioners would be on the ground on all occasions to see what might be required to guard against danger. The contractor failed in performing his duty, and I think he ought to be liable." "The question," says PENNEFATHER, B., " is, who is liable. If the contractor, the commissioners are not liable, for it is clear, from all the cases, that if the contractor is liable the employee is not. It appears to me, that if it was the duty of the contractor to put these lights, his employees were not bound." "The principle of law is clear," remarks PIGOT, C. B., " that when a person is engaged by contract to do a certain work, the contractor and not the employee is liable for this." Such, too, is held to be the law in Scotland. In McLean v. Russell, McNee & Co., 9th March, 1850, 22 Jur. 394, it was decided that when a person contracts with one man to do a piece of work, and the latter sub-contracts with another, the sub-contractor alone is liable for any damage committed in the course of the work by him." This view of the law was again sustained by the same court in Shield v. Edinburgh & Glasgow Railway Co., 28 Jur. 539. The plaintiff, in support of this suit, relies upon the case of Bush v. Steinman, 1 B. & P. 404; the case was this: A, having a house by the roadside, contracted with B to repair for a stipulated sum; B contracted with C to do the work; C with D to furnish the materials; the servant of D brought a quantity of lime to the house, and placed in the road, by which the plaintiff's carriage was over Eaton v. European & Northern Railway Co. turned. Held, that A was answerable for the damage sustained. Without particularly examining the reasoning of the court, it is sufficient to say that it has been long since overruled in England and in this country, as will abundantly appear by the cases cited. It is true the case is cited with approbation in Lowell v. Boston & Maine Railroad, 23 Pick. 24, but subsequently, upon an elaborate and careful review of the authorities, it was overruled in Hilliard v. Richardson, 3 Gray, 349. It can no longer be deemed an authority on the other side of the Atlantic. The next case cited in support of this claim is Lowell v. B. & M. R. R., 23 Pick. 24, but so far as that rests upon Bush v. Steinman, as has been already seen, it has been overruled. "The accident" in that case, observes THOMAS, J., in Hilliard v. Richardson, “occurred from the negligence of a servant of the railroad corporation, acting under their express orders. The case, then, of Lowell v. Boston & Lowell Railroad stands perfectly well upon its own principles, and is clearly distinguishable from the case at bar. The court might well say, that the fact of Noonan, being a contractor for this section, did not relieve the corporation from the duties or responsibility imposed on them by their charter and the law, especially as the failure to replace the barriers was the act of their immediate servant, acting under their orders." The defendants in the present case would be liable for any and all wrongful acts done by their "immediate servant, acting under their orders." They should not be held responsible for the torts of a contractor engaged to do a specified work, lawful in itself, which might be performed without interfering with rights of others, nor for the torts of his servants, whom they never employed, over whom they had no control, and whom they could not discharge. In Wyman v. Penobscot & Kennebec R. R. Co., 46 Me. 162, the train by which the injury was caused was "run under the direction of the company and under their control," and it was, consequently, held liable. In Veazie v. Penobscot R. R., 49 Me. 119, the plaintiff town sought to recover of the defendant corporation the amount it had been compelled to pay in consequence of a defect in a highway occasioned by their neglect. The injury, it is stated in Phillips v. Veazie, 40 Me. 98, was occasioned "by the acts of the Penobscot Railroad Company, in constructing their road over that of the defendants." The decision in Veazie v. Penobscot Railroad Co. is placed on the ground that the work causing the injury was done "according to the plans and directions of the chief engineer of said Company." It is undoubtedly true, that when the contractor is to follow the directions of an engineer of the contracting corporation, and he is directed by such engineer to do an unauthorized and illegal act, the corporation, thus acting by its agent, would be held liable. But if the engineer gives no such directions, and the tortious acts of the contractor or of his servants are of his or their mere motion, and without such direction or authority, it is difficult to perceive why a railroad corporation, in such case, should be held any more liable for such torts of a contractor than an individual, or a city, or any corporation. If the contract is a legal one, the acts contracted to be done are legal, the wrongful acts of the contractor are his own, and not those of the party with whom the contract is made. It is different when the relation of master and ser vant exists. The case, therefore, of Veazie v. Penobscot Railroad Co. is in accordance with all the authorities, if these wrongful or negligent acts were done by the specific direction of their engineer. The other ground upon which the decision is placed, that "the company must be responsible, whatever contracts they may make," for the torts of those with whom they contract, can hardly be sustained to such an extent. The authorities already cited abundantly show that for the neglects and torts of contractors or their servants, railroad corporations are not to be governed by other or different rules than those applicable to other corporations or to individuals. The fact that it is specified in the original contract with Pierce & Blaisdell that "the work shall be constructed under the general supervision of the chief engineer of said company, as required by this contract and specifications," does not necessarily render the defendant corporation liable for whatever the contractor or their servants may wrongfully do. The corporation is not to be held for an illegal act not contracted to be done, nor directed by their engineer, and in no way sanctioned by corporate action. In Steel v. The Southeastern Railway Co., 81 E. C. L. 550, the work was to be done by the contractor according to plans prepared by and under the superintendence of the company's surveyor, yet the railway company was held not responsible for any injury resulting to a third person, from the negligent manner in which the work was done by such contractor. It was not caused by the company or by any servant in their employ. In Kelly v. Mayor, etc., of New York, 11 |