CATHERINE AHERN, Administratrix etc. of John Ahern, Deceased, Respondent, v. JOHN McGEARY et al. JOHN McGEARY, Appellant

[No. 11669. Department Two. April 24, 1889.] CATHERINE AHERN, Administratrix etc. of John Ahern, Deceased, Respondent, v. JOHN McGEARY et al. JOHN McGEARY, Appellant. Employer and Employee — Independent Contractor — Action for Negligence — Nonsuit as to Employer. — In an action against an independent contractor and his employer to recover damages for personal injuries caused by the negligence of the contractor, the granting of a nonsuit as to the employer, although erroneous, does not concern the contractor, and cannot be urged by him as error. Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. Adam and Kibbe, the owners of a building in the city and county of San Francisco, employed the'defendant McGeary to take down a flag-pole on the top of the building. While engaged in the work of removal, through the negligence of McGeary and his servants, the flag-pole fell to the street and killed John Ahern, the plaintiff’s intestate. The action was brought against Adam and Kibbe and McGeary, to recover damages for the negligent killing. On the trial, a nonsuit was granted as to Adam and Kibbe, and judgment rendered against Mc-Geary. The latter moved for a new trial, and his motion being denied, appeals from the judgment and order. The further facts are stated in the opinion of the court. Robert Ash, for Appellant. Edward P. Cole, for Respondent Ahern. McAllister & Bergin, for Respondents Adam and Kibbe. [MAJORITY — Thornton, J.] Thornton, J. The nonsuit was properly refused as to McGeary. The evidence shows clearly that he was an independent contractor to take down the flag-pole or staff; that it was carelessly taken down, in consequence of which it fell on John Ahern, who was on the street, and killed him. The appellant McGeary has no concern with the nonsuit which was granted as to the defendants Adam and Kibbe, and cannot urge such ruling as error. If there was any error at all in this ruling, it did not affect him. We find no error in the record. Judgment and order affirmed. McFarland, J., and Sharpstein, J., concurred. Hearing in Bank denied.