Wilbur v. White , 98 Me. 191 ( 1903 )

Strout, J.

Clarry made a contract witli this defendant to mo.ve a building from one site to another, and after its removal to put in a basement and make repairs upon the outside. The means and appliances for the removal, and the route over which the building was to pass were not mentioned in the contract, but were left wholly to the defendant. The defendant before doing anything under his contract made a contract with Walker, by which Walker was to remove thé building to the new site, for an agreed lump sum. As in the first contract, the means, appliances and route were left wholly to Walker, who was to furnish all needed materials and labor, this defendant making no suggestion -to nor exercising any control over Walker in any matter connected with the removal. The method adopted by Walker was to sink in the highway a stick of timber, called a dead-man, and attach to that a chain with a large hook to‘which was connected a tackle and fall, which, operated by horse power, drew the building along. Walker completed his contract and placed the building on its new site, and was paid by the defendant the contract sum. Clarry paid White the sum he had agreed to pay, The deadman was sunk to the level of the way and in the traveled part, but the chain and hook were above the ground, and were left there by Walker or his servants after the removal of the building had been fully accomplished.

The plaintiff was driving on the way, and apparently the hook upon the chain caught in the wheel of her carriage, and she was thrown out and injured. She claims that the defendant is responsible.

The relation of master and servant did not exist between the defendant and Walker. The latter was an independent contractor, performing his contract in his own manner, and supplying all appliances, and was in no manner under the control or dictation of the defendant. The general rule in such cases is that responsibility for the negligence of such contractor rests upon him alone. Leavitt v. B. & A. R. R. Co., 89 Maine, 509, 36 L. R. A. 382.

This is conceded by the plaintiff.

But to tlie rule there are certain exceptions, one of which is, when a party is discharging a public duty he cannot be freed from his obligation'to protect the public by subletting the work. Lowell v. B. & L. R. R. Corp., 23 Pick. 24, 34 Am. Dec. 33. Another exception is where one employs another to do an act unlawful in itself, he will be liable for an injury such act may occasion. Ellis v. Sheffield Gas Consumers’ Co., 2 El. & Bl. 767. Plaintiff claims that this case falls within this exception. The act to be done was the removal of the building from one place to another, — a perfectly legal act. It could be performed without violating any provision of law. The contract did not call for any such violation, nor did it call for the removal over the highway. But even if that was the route anticipated by the parties, as likely to be adopted, it would not necessarily follow that a common nuisance would thereby be created. The size of the building, the width of the way, amount of travel over it, the expedition of the removal, and appliances and motive power employed, were all factors in the determination of that question. The case throws no light upon these.

But the conclusive answer to the plaintiff’s claim is, that the moving of the building over the highway was not the proximate cause of plaintiff’s injury. The moving had been completed, the building was on its new site, and whether while in the removal it was a nuisance or not, it had been removed before the accident, and was in no sense its proximate cause. Walker or his servants negligently left the chain and hook in the way, after the removal had been fully accomplished, and the hook caused the injury, not the building in the way, or its passage over it. This defendant had nothing to do with placing or leaving the chain and hook in the way, nor was it his negligence or that of his servant in allowing it to remain.

We perceive no principle of law which makes this defendant liable.

A full and exhaustive discussion of the law on this subject may be found in Hilliard v. Richardson, 3 Gray 349, 63 Am. Dec. 743; Burbank v. Bethel Steam Mill Co., 75 Maine, 373, 46 Am. Rep. 400; Chicago v. Robbins, 2 Black, 418.

Judgment for defendant.