Creed v. Pennsylvania Railroad Company. have been informed of the rule and may have persisted in remaining there in violation of it, if his position did not contribute to the accident which caused the injury. It is manifest, therefore, from reason and authority, that there was nothing in the first point for the court of reserve, but having instructed the jury that there was no evidence of contributory negligence on part of Creed, the matter should have been allowed so to stand. As to the second point, it was certainly correct to say "that if a person, not connected with the company, travels by a passenger train, presumably he is travelling as a passenger, and for a consideration;" in other words, he is presumed to have paid his fare or to be ready to pay it when called upon. To presume otherwise, would be to presume that such a one was a trespasser; but this is an affirmative proposition, the proof of which rests upon the one alleging it. As the doctrine above stated is expressly ruled in the case of the Pennsylvania Railroad v. Books, 7 P. F. Smith, 339, per SHARSWOOD, J., we need pursue this subject no further. The position occupied by the decedent, in the caboose-car, may raise a question for the jury. Creed was upon a passenger-train, and, as we have seen, might lawfully occupy any part of that train, whether passenger-car or caboose, if the conductor, knowing his position, did not object to it. It follows that all presumptions favorable to the occupant of a passenger-car attach in like manner to him though occupying the caboose. It cannot be said that it was no part of the duty of the passenger conductor to visit this caboose, and that, hence, no presumption can arise that Creed paid fare to an officer whom he did not see and who did not see him, for as it is the conductor's duty to visit every part of his train where passengers may lawfully be, we must presume he did his duty. Whilst this is so it does not follow, from the facts developed in this case, that a presumption de jure arises that Creed did pay his fare, or that he may not have been a trespasser. That he did not pay his fare to Brannig, the freight conductor, counts for nothing, for he was not authorized to receive it. This fact, however, does prove that if he paid at all it must have been at Jersey City, at Newark, or between those places whilst the train was in charge of the passenger conductor, and as he was first noticed by Brannig, at Newark, in the lookout part of the caboose, and as he may have occupied that position from Jersey City, it is quite possible, or even probable, that he may not have been seen by the passenger conductor, or if Harrison v. Collins. seen by that officer, may have been mistaken for one of the train hands and so have avoided the payment of fare. There being this in the case, which ought to be passed upon by a jury, we send it back for re-trial instead of entering judgment on the verdict. Judgment reversed, and a venire facias de novo awarded. Judgment reversed. HARRISON V. COLLINS. (86 Penn. St. 153.) Negligence-contractor - coal hole open in sidewalk. The owners of a sugar refinery employed a rigger to remove machinery from a railroad car to their refinery. In doing the work the rigger opened a coal hole in the sidewalk, and left it open a few minutes after the work was finished. A lad fell into the hole and was injured. The rigger was paid by the day, and the owners of the refinery neither directed nor interfered with the manner of the work. Held, that they were not liable for the injury.* (See note, p. 702.) A CTION of negligence. The opinion states the facts. Plaintiff had judgment. George Junkin and George W. Biddle, for plaintiffs in error. Pierce Archer, Jr., and Lewis C. Cassidy, for defendants in error. The leaving open the coal hole was a public nuisance, for which the defendants were liable. Pickard v. Smith, 10 C. B. (N. S) 470; 100 E. C. L. Rep. 470; Whiteley v. Pepper, 36 L. T. Rep. 588; public nuisance. Shearman and Redfield on Negligence, § 84; McCleary v. Kent, 3 Duer, 27; Ellis v. Sheffield Gas Co., 2 Ell. & B. 767; Gray v. Pullen, 5 Best & S. 970; Wiswall v. Brinson, 10 Ired. 554; Irvine v. Wood, 51 N. Y. 224; 10 Am. Rep. 603; Congreve v. Morgan, 18 N. Y. 84. MERCUR, J. This was an action by the defendant in error to *See City of Erie v. Caulkins, ante, p. 642. Harrison v. Collins. recover damages for injuries which he sustained by falling into a coal hole of the plaintiffs in error. They were sugar refiners, occupying buildings on Swanson street, in the city of Philadelphia. They purchased two large iron coolers, to use in their business. The coolers were brought by rail to within about one hundred feet of their works. They then employed John Connor, a rigger, to take the coolers from the cars and place them in their building. He was to be paid four dollars per day for his own services, and for each of his three assistant riggers. On each of these three men he made a profit of fifty cents per day. He was to furnish the ropes, hoisting apparatus, and all the necessary machinery incident to his occupation. Yet for the use of these he appears to have received an additional sum. The distance to move the coolers being so short, he moved them with skids and rollers, over the sidewalk. While so moving them he uncovered the coal-hole, and left it open, by reason of which the defendant was injured. The question presented is, whether the plaintiffs in error are liable for the injury thus sustained. As one general principle pervades all the assignments, they will be considered together. The learned judge thought it unimportant whether Connor was merely the servant or agent of the plaintiffs, or whether his employment was an independent one; that if he used the hole by either the express or implied permission of his employers, they were liable; or if he used it without their permission, and as a trespasser, and left it open "for any time," after so using it, they were liable. In this we think there was error. If Connor was their mere agent or servant, they would be liable for his negligent manner of performing the work. Yet, if his employment was an independent one, they are not so liable. This distinction has been recognized in numerous cases. Among others may be cited Painter v. The Mayor, etc., of Pittsburgh, 10 Wright, 213; Hunt v. Pennsylvania Railroad Co., 1 P. F. Smith, 475; Allen v. Willard, 7 id. 374. It is well settled in England and in this country, that persons not personally interfering or giving directions respecting the manner of the work, but contracting with a third person to do it, are not responsible for a wrongful or negligent act in the performance of the contract, if the act agreed to be done is legal. Gray & Wife v. Pullen & Hubble, Law Jour. Rep., vol. 32, part 2, 169, N. S.; Hilliard v. Richardson, 3 Gray, 349; Blake v. Ferris, 1 Seld. 48; Harrison v. Collins. Painter v. The Mayor, etc., supra. The fact that the contractor is paid by the day does not necessarily destroy the independent character of an employment. Forsyth v. Hooper, 11 Allen, 419; Corbin v. America Mills, 27 Conn. 274. If one renders service, in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished, it is an independent employment. Shearman & Redfield on Neg., § 74; Pack v. The Mayor, etc., of New York, 4 Seld. 222; Barry v. The City of St. Louis, 17 Mo. 121. In the present case the evidence was most ample to submit to the jury to find that Connor's employment was an independent one. It does not appear that the plaintiffs in error reserved any right to advise or direct as to the manner in which the coolers should be moved, nor that they assumed or exercised any such authority during the progress of the work. It is not pretended that the moving was an unlawful work. As to Connor it was a distinctemployment in the line of his occupation. His employers stipulated for the result only. He alone superintended and directed the manner in which his assistant riggers should work. He had the exclusive control and direction of the plaintiff's men, who assisted him. He testifies that he did the job according to his own views. Under his directions the coal-hole was opened. It is not shown that the plaintiffs in error, or any one acting under their directions, were present, or had knowledge that it was opened. It is not claimed to have been opened by their express authority. How could their permission be implied? We see no necessary connection between the work to be done and the use of this coal hole in performing it. If the jury should think there was no reasonable presumption that Connor would use the hole in such a manner as to uncover it, the plaintiffs in error were guilty of no negligence in not stationing a man there to prevent its being opened. The coal-hole appears to have been in all respects constructed and protected according to the city ordinance. Its cover was of solid cast-iron, weighing about sixty pounds. At the bottom it was securely fastened. Certain it is that the coal-hole was not made nor maintained for any such use as it was subjected to by Connor. If, then, it should be found that his employment was an independent one, and that he had no implied permission to use it in the manner in which he did use it, or if Connor was a trespasser while Harrison v. Collins. so using it, the plaintiff would not be liable for an injury sustained by the defendant, on the instant that Connor ceased to use it. While it is true, as the learned judge said, "the instant that he ceased to use it, its control reverted to the " plaintiffs in error; yet it does not follow "from that instant they were bound to protect it." This is imposing too harsh terms on them. If they had no expectation that the hole would be uncovered or thus used, and no knowledge that it was, they should not be held liable until such reasonable time had elapsed, under all the circumstances, that a careful and prudent man ought to have discovered its dangerous condition. If, after such reasonable time had elapsed, and they failed to make the hole secure, they cannot be relieved from the consequence of their own negligence, by showing the previous trespass of Connor. It then follows that the assignments, except the last, are substantially sustained. Judgment reversed and a venire facias de novo awarded. Judgment reversed. NOTE BY THE REPORTER.-The following English cases involve the doctrine of the principal case: Dean v. Braithwaite, 5 Esp. 35, A. D. 1803. The owner of horses and chaise let out for hire, and not the hirer, is liable for injuries done by them. Per ELLENBOROUGH, J. Sammell v. Wright, 5 Esp. 263, A. D. 1805. The Marchioness of Bath hired servants and horses for her coach. The owner of the horses was held liable for injury. Same judge. Leslie v. Pounds, 4 Taunt. 649, A. D. 1812. The entrance to a cellar in the highway was left uncovered at night, while undergoing repairs for the owner. He was held liable for injury to one who fell in. Per MANSFIELD, C. J. Matthews v. West London Water Co., 3 Campb. 403, A. D. 1813. Defendants held liable for negligent construction of a sewer by a contractor, because "they caused their contractor to commit a public nuisance." Per Ld. ABINGER. "This case is not considered authority." Overton v Freeman, 11 C. B. 872, A. D. 1852. Laughlin v. Pointer, 5 B. & C. 547, A. D. 1826. Defendant held not liable for injuries committed by driver of horses owned by another and furnished for defendant's carriage. Per Ld. TENTERDEN. Here originated as dictum the untenable distinction as to liability between the owners of real and those of personal property. Smith v. Lawrence, 2 Mann. & Ryl. 1, A. D. 1828. Owner of carriage hired post horses and postillions of B, a livery-stable keeper. The negligence of the postillions injured C's carriage. B was held liable. Fenton v. City Dublin Packet Co., 8 A. & E. 835, A. D. 1838. Defendants owned a vessel and hired her crew, and leased her to D. Vessel sunk plaintiff's boat. Defendants and not D held liable. Quarman v. Barnett, 6 M. & W. 499, A. D. 1840. Exactly like last case, except that defendant paid the driver. Same holding. Milligan v. Wedge, 12 A. & E. 737, A. D. 1840. Owner of ox not liable for injury by it while driven by servant of a licensed drover. Rapson v. Cubitt, 9 M. & W 710, A. D. 1842. Defendant contracted to alter a build ing, and sub-contracted with B for gas fittings. Through negligence of B's servants plaintiff was injured by explosion. Defendant held not liable. Allen v. Hayward, 7 A. & E 960, A. D. 1845. Commissioners contracted the building of a drain, the contractor to pay wages and damages. The contractor did the work so defectively that it broke, and injured plaintiff. Commissioners held not liable. |