Kelly against The Mayor &c. of New-York

Kelly against The Mayor &c. of New-York. The corporation of the city of New-York, which had ordered a street to be graded and contracted with a person to do the grading, is not liable for damages caused by the negligence of the workemen employed by the contractor in performing the work. The rule' is not otherwise, although th contract provides that the work sbaE be done under the direction and to the satisfaction of certain officers of the corporation. The action was brought by Kelly in the New-York common pleas against the mayor, aldermen and commonalty of the city of New-York, to recover for an injury to his horse, alleged to have been caused by the negligence of the defendants or their servants in blasting rocks, in the opening and excavating of Seventy-first street in the city of New-York. The cause was tried before justice Woodruff in January, 1852. The plaintiff proved that in October, 1850, he was driving along the Bloomingdale road, in the vicinity of Seventy-first street, when his horse was struck and injured by a stone thrown from a blast set off on the last mentioned street; he also gave evidence tending to prove that the person in charge of the blast gave no notice to persons passing on the Bloomingdale road. The counsel for the plaintiff read in evidence the following resolution passed by the common council of the city of New-York, and duly approved by the mayor in July, 1850, viz: “ Resolved, that a country road thirty feet wide be worked through the center of Seventy-first street, from the eighth to the tenth avenue, under the direction of the commissioner of repairs and supplies, and that the expense thereof be charged to the appropriation for roads and avenues.” He also read in evidence a contract, dated in August, 1850, between “ the mayor, aldermen and commonalty of the city of New-York, by William Adams, their commissioner of repairs and supplies of the first part,” and John Quin of the second part, by which Quin agreed to grade a space thirty feet wide through the centre of Seventy-first street from the eighth to the tenth avenue, complying in every respect with the specification and profile on file in the office of the commissioner of repairs and supplies. By this contract Quin was bound and agreed to erect a fence across the end of the work, and during the night to keep burning proper 1 and sufficient lights on and near the work, and to take all other necessary precautions for the prevention of accidents or injuries to persons or property, and to indemnify the party of the first part against all loss or damage by reason of any neglect or unskillfulness in the execution of the work. The contract contained the following provision among others : “ The whole work to be done under the direction and to the entire satisfaction of the commissioner of repairs and supplies, the superintendent of roads, and the surveyor having charge of the work ; and the certificate of the superintendent of roads and the surveyor, to that effect, will be a condition precedent to the acceptance of the work, and payment for the same.” It was proved that all the blasting done on Seventy-first street in the execution of the contract was done by and under the immediate charge of one Ford, who was employed by Quin, the contractor, and that Ford set off the blast which caused the injury. Evidence was given showing the directions given by Quin to Ford as to care, and giving warning of the blast, and tending to prove the manner in which the blasting was done, and notice given to persons passing. It was admitted that the commissioner of repairs and supplies, in accordance with the ordinances of the city, previous to the making of the contract given in evidence, advertised for proposals for the work; and that proposals were received and the contract awarded to Quin, who was the lowest bidder. The counsel for the defendants insisted that they were not liable for the negligent acts of the contractor Quin or workmen employed by him in doing the work, and moved the court to so rule and nonsuit the plaintiff. The court declined to so rule or nonsuit the plaintiff, and charged the jury, that if they were satisfied that the injury to the plaintiff's horse was caused by the negligence of Quin, the contractor, or of workmen employed by him on the job in doing the blasting, and that the plaintiff had in no way contributed to the accident by his own carelessness, the defendants were responsible for the damage. The counsel for the defendants excepted. The jury rendered a verdict in favor of the plaintiff for $125 damages, upon which judgment" was rendered against the defendants. They tendered a bill of exceptions, and, the judgment having been affirmed by the common pleas at a general term, appealed to this court. R. J Dillon, for the appellants, insisted, I. The relation of master and servant, or of principal and agent, did not exist between the corporation and Quin, who by the contract undertook an independent employment. (Blake v. Ferris, 1 Selden, 48; City of Buffalo v. Holloway, 3 id. 493.) II. The workmen who caused the injury were the agents of John Quin, not of the defendants. Quin was responsible for his selection, and they were responsible to Quin, and not to the defendants, for any disobedience of orders. The same reservation appeared in the case cited, and was fully argued and discussed, and held not to affect the general principle. (Pack v. Mayor &c. of N. Y., Court of Appeals, MSS. Duffy v. Mayor &c. of N. Y., Superior Court, MSS.) III. The contract was entered into pursuant to the charter and ordinances, which made it compulsory upon the defendants to commit the execution of the work by contract to Quin, as the lowest bidder. They cannot, therefore, be responsible for the negligence of him or his workmen. (Amended Charter of 1849, § 23; Ordinance of May 30, 1849.) L. B. Shepard, for the respondent, insisted that this case was distinguishable from that of Blake v. Ferris, (1 Selden, 48,) and Pack v. The Mayor &c. of New- York, recently decided. The contract with Quin provides that “ the whole work is to be done under the direction” of the commissioner of repairs and supplies and others. This language retains the control of the work to the corporation, and it cannot be said' that Quin was exercising an independent employment. (See Allen v. Hayward, 7 Queen’s Bench, 970, 975, 976 ; Burgess v. Gray, 1 Common Bench, 587, 593; The Mayor &c. of New- York v. Baily, 2 Denio, 433; 16 English Law and Eq. Rep. 445-447, n. 1, where cases upon the doctrine of respondeat superior a,re collected.) [MAJORITY — Selden, J.,] Selden, J., delivered the opinion of the court. The written agreement between the defendants and John Quin, the immediate employer of the persons through whose -carelessness the injury to the plaintiff was occasioned, contained the following clause: “ The whole work to be done under the direction, and to the entire satisfaction of the commissioner of repairs and supplies, the superintendent of roads, and the surveyor having charge of the work: and the certificate of the superintendent of roads and the surveyor, to that effect, will be a condition precedent to the acceptance of the work and payment for the same.” It is claimed that this clause distinguishes this case in principle from those of Blake v. Ferris, (1 Selden, 48,) and Pack v. The Mayor &c. of New- York, (4 Selden’s Rep. 222.) In the last of these cases the contract contained a clause by which the contractor engaged to conform the work to such further directions as might be given by the corporation or its officers. It was claimed that this clause distinguished the case from that of Blake v. Ferris, (supra.) But the court held, that the effect of this clause was to give to the corporation power to direct as to the results of the work merely; that is, its condition, when completed; that it gave them no control over the contractor or his workmen, as to the manner of performing it, and had no tendency therefore to create the relation of master and servant, or of principal and agent, between the corporation or its officers, and the contractor or the workmen employed by him. In the case at bar the language is somewhat broader and more comprehensive. “ The whole work” is to be done “ under the direction and to the entire satisfaction,” &.C. Still I think the reasoning of the court in the case of Pack v. The Mayor &c. applies equally to this. The clause in question clearly gave to the corporation no power to control the contractor in the choice of his servants. That he might make his own selection of workmen will not be denied. This right of selection lies at the foundation of the responsibility of a master or principal, for the acts of his servant or agent. In the case of Pack v. The Mayor &c., (supra,) Jewett, J., says: “ The party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskillful or careless person to execute his orders, should be responsible for an injury resulting from the Want of skill, or want of care, of the person employed.” As a general rule, certainly, no one can be held responsible as principal, who has not the right to choose the agent from whose act the injury flows. There may be exceptions, as in the case of Bailey v. The Mayor &c. of New-York, (3 Hill, 531.) The principle of that case, however, has no application to this. But the corporation, in addition to its want of power to protect itself by the employment of suitable workmen, had no power to direct in this case, any more than in that of Pack v. The Mayor, &c., as to the particular manner of performing the work. The object of the clause relied upon, was not to give to the commissioner of repairs, and the other oflicer named, the right to interfere with the workmen, and direct them in detail how they should proceed, but to enable them to see that every portion of the work was satisfactorily completed. It authorized them to prescribe what was to be done, but not hoto it was to be done, nor who should do it. This case, therefore, cannot be distinguished in principle from those already decided by this court; and it would be a work of mere supererogation to repeat the reasoning in those cases. The judgment of the common pleas must be reversed and a new trial ordered, with costs to abide the event. Judgment accordingly.