Maintenance to do is primâ facie dangerous or not, but whether if done by the employer it would be done at his peril. A person, however, who employs a contractor to bring some foreign thing on to his land. will not be responsible for its escape therefrom until he has begun to keep it, that is to say, until the contractor has parted with the possession of the thing, which will not happen until the thing has been placed in the position in which it is definitely intended to be left. Thus where a railway company employed a contractor to build a bridge, and one of the contractor's workmen dropped a stone, intended ultimately to form part of the bridge, upon a passer-by in the street below, the company were held not liable (a).. Had the stone dropped after it had been definitely placed in position they would have been liable (b), for the case would have come within the principle of Tarry v. Ashton (c) and it is apprehended that the fact of the accident happening before the workmen had finished the job and quitted the premises would have made no difference in this respect (d). There is, however, no liability where a person stores a thing on his own land, using all reasonable care to keep it safely, and it escapes either by the act of God or by vis major (e). But a landowner is responsible for the negligence of an independent contractor employed to burn scrub on his land, whereby the fire spreads to the adjoining land of the plaintiff (f). Again, the owner of an artificial structure, such as a coalcellar, with an opening in a highway or other place over which the public have a right of passage, maintains it at his peril, and consequently if the owner of such a cellar employs a coal merchant to deliver coals into it, and the coal-merchant's servants. whilst engaged in delivering them neglect to fence the opening whereby an accident happens to a passer-by, he will be liable none the less because the parties guilty of the negligence were (a) Reedie v. London & North Western R. Co., (1849) 4 Exch. 244. (b) Assuming, that is to say, that the bridge was not built under statutory powers. See Ch. XIV. (c) (1876) 1 Q. B. D. 314. (d) By analogy to the cases of withdrawal of support, and Pickard v. Smith, (1861) 10 C. B. N. S. 470, the coal- (f) Black v. Christchurch Finance Co., (1894) A. C. 48. the servants of an independent contractor (a); for the duty to fence the hole securely is an absolute duty (b). Nor will a plea of contributory negligence or trespass avail when the accident befalls a child of tender years (c). It was at one time thought that the obligations attaching to the ownership of fixed property were such as to render the owner liable for any act of negligence on the part of a contractor's workmen who were engaged in work upon the premises for the owner's benefit. Thus, in Bush v. Steinman (d), where the defendant employed a contractor to repair his house adjoining a high road, and a contractor's workmen left a pile of lime on the roadway, whereby the plaintiff's carriage driving against the heap was overturned and injured, it was held that the defendant was liable. And in Laugher v. Pointer (e), Littledale, J., suggested that "in all cases where a man is in possession of fixed property he must take care that his property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate servants or by contractors and their servants." This extreme doctrine, however, was in Reedie v. London & North Western R. Co. (f) denied to be law, and Bush v. Steinman was there overruled. It has, however, been subsequently re-affirmed by the Court of Appeal in Penny v. Wimbledon Urban District Council (g). And a similar doctrine was laid down in the case of The Snark (h), in which it was held by Barnes, J., that the owner of a sunken vessel, in the tide-way, which he had not abandoned, was liable for the neglect of a contractor to whom he had deputed the duty of marking her position. Consequently, the decision of the Court, in favour of the defendant, in the earlier case of Knight v. Fox (i), where the defendant, a contractor employed to build a bridge over a railway, (a) Pickard v. Smith, (1861) 10 C. B. N. S. 470; and see Holliday v. National Telephone Co., (1899) 2 Q. B. 392. (b) Lawrence v. Jenkins, (1873) L. R. 8 Q. B. 274. See below, Ch. XV. (e) Harrold v. Watney, (1898) 2 Q. B. 320; Cummings v. Darngaril Coal Co., (1903) 5 F. 513, Ct. of Sess.; but see Hughes v. Macfie, (1863) 2 H. & C. (d) (1799) 1 B. & P. 404. The keeping of beasts, fire, and explosives. Where contractor employed to execute work which employer is under statutory obligation to execute. employed a sub-contractor to erect a scaffolding for that purpose, and the sub-contractor's workmen improperly caused a pole of the scaffolding to project over the footway, whereby the plaintiff fell over the pole in the dark and was injured, can no longer be regarded as good law. But the distinction between fixed and moveable property, as regards the obligations respectively attaching to their ownership, nevertheless holds good in respect of the two classes of cases coming within the principles of Tarry v. Ashton and Pickard v. Smith (a). Although in general the owner of moveable property which escapes from some place elsewhere than his own land and does damage is not liable in the absence of negligence (b), it is otherwise in the case of beasts feræ naturæ, in the case of fire, such as that of locomotive engines, and probably also in the case of explosives (c); moveables of such description the owner apparently keeps at his peril, not merely when they are on his land, but whatever the place from which they escape may be. Therefore it is apprehended that if the owner of a savage beast employ a contractor, such as the Zoological Society, to keep the beast for him, and through the negligence of the contractor's servants it escapes, the owner would on principle be liable; and similarly a consignor of nitro-glycerine or some other unstable explosive by railway would presumably be liable if an explosion occurred while the goods were in transitu; but these questions have never yet directly arisen for decision (d). 2. The second class of cases in which an employer is liable for the negligence of a contractor is, as above stated, where the employer, being under a statutory obligation to do some particular act, has delegated the performance of his duty to the contractor, and the contractor has failed to perform it (e). Thus where a statute imposed a duty upon the defendants of making a bridge that would open in a particular way, and they employed a contractor who made a bridge that would not open in the manner (a) pp. 106 and 107, supra. (b) See, however, Snee v. Durkie, (1903) 6 F. 42, Ct. of Sess. (c) See Ch. XV. (d) Farrant v. Barnes, (1862) 11 C. B. N. S. 553; East India R. Co. v. Kalidas Mukerjee, (1901) A. C. 396, P. C. (e) à fortiori the same rule, as to liability, applies where the particular act complained of was not necessarily ancillary to, but in excess of, the statutory powers, Tilling, Ltd. v. Dick, Kerr & Co., (1905) 1 K. B. 562. required, they were held to be nevertheless responsible for the non-discharge of their duty (a). Similarly, where the defendants, being empowered by statute to make a drain across a highway, but being also required by the same statute to reinstate the road properly after the drain was made, employed a contractor to do the work, who neglected to reinstate the road properly, whereby damage happened, the defendants were held liable (b), it being "an implied condition of statutory powers that, when exercised at all, they shall be executed with due care " (c). The Court in that case also intimated that even if there had not been an express provision in the statute requiring the defendants to properly reinstate the road, they would still have held them liable, upon the ground that there was also an implied statutory obligation to do it, for that a section which authorises the making of a drain implies that the duty to fill it up is also imposed (d). It was apparently upon this principle that Lindley and Rigby, L.JJ., proceeded in the case of Hardaker v. Idle District Council (e). There the defendants being about to construct a sewer in a street under powers conferred upon them by the Public Health Act, 1875, employed a contractor to construct it for them. In order to execute the work he had to remove the soil under a gas-pipe. Owing to his neglect to securely pack the soil under the gas-pipe after the sewer was made, the gas-pipe broke, whereby the gas escaped into the plaintiff's house and there exploded. The defendants were held responsible (ƒ). 3. The third class of cases is where the contractor is employed Where to do some work which is altogether unlawful in itself. If, as employed to (a) Hole v. Sittingbourne R. Co., (1861) 6 H. & N. 488. (b) Gray v. Pullen, (1864) 5 B. & S. 970; cp. Peachey v. Rowland, (1853) 13 C. B. 182; and see Shoreditch Corporation v. Bull, (1904) 90 L. T. 210, H. L. (c) Sanitary Commissioners of Gibraltar v. Orfila, (1890) 15 App. Cas. 400, at p. 411. (d) See per Erle, C.J., 5 B. & S. p. 984. (e) (1896) 1 Q. B. 335. (f) Rigby, L.J., while holding that contractor do something the defendants were liable even on per se un. the assumption that the person whose lawful. negligence was complained of was a contractor, was of opinion that his relation to the defendants was, in fact, that of a servant. Smith, L.J., agreed with Lindley, L.J., in holding that the negligent person was a contractor, but he held the defendants liable upon a different ground; he apparently assented to the distinction between employment to do work which is, and employment to do work which is not, prima facie dangerous, and cited with Ratification of torts. incidental to the execution of such work, the contractor's servants be guilty of some negligence, the employer will be responsible. Thus, where a gas company, who had no statutory powers (a) to take up the streets for the purpose of laying their gas-pipes, employed a contractor to take up the surface of the streets and lay their pipes for them, and the contractor's servants having laid their pipes, insufficiently reinstated the surface whereby damage happened, the gas company were held liable (b); and a similar rule applies where the act complained of resulted from work done in excess of, and not ancillary to, the statutory powers (c). 4. The fourth class of cases in which an employer cannot divest himself of liability for the torts of a third party is, as before stated, when a person, or a body of persons, employs an independent contractor to do a description of work, for him or them, in a public place, that is likely—in the absence of necessary precautions to prove dangerous to a member of the public at large (d). But where the act which the contractor is employed to do belongs to none of the four above classes of cases the employer is not liable for the contractor's negligence. A person may be liable for the tort of another, even though at the time of the tort committed he did not stand to him in the relation of principal to agent, if the tort was committed on his behalf and in his name, and he subsequently ratified it. the common law he that receiveth a trespasser and agreeth to a trespass after it be done is no trespasser, unless the trespass was done to his use or for his benefit, and then the agreement approval the rule as stated in Bower v. "By to base his judgment upon different grounds. (a) This seems to have been assumed by the Court. (b) Ellis v. Sheffield Gas Co., (1853) 2 E. & B. 767. (c) Tilling, Ltd. v. Dick, Kerr & Co., (1905) 1 K. B. 562. (d) Hill v. Tottenham Urban District Council, (1898) 79 L. T. p. 495 ; Mileham v. Corporation of Marylebone, (1903) 67 J. P. 110. |