298
87 FEiO!'JRAI.i REPORTER.
McNAMEE v. HUNT. (Circuit Court of Appeals, Fourth Circuit. No. 248. 1. CONTRACTOR'S NEGLIGENCE-LIAllIUTY OF' EMPLOYER.
May 3, 1898.)
An employer is liable for injuries to third parties when they result directly from acts of a contractor which he had expressly authorized. or which were necessary to the performance of the contract, but not when they result from acts purely collateral to the contract, and arising indirectly in the course of performance.
2.
CONSTRUCTION OF' WRITTEN INSTRUMENTS-PROVINCE OF' JURY.
In 'general, tbe construction of Written instruments Is for the court; but where the ef'f,ect of papers collaterally Introduced In evidence depends, not only upon the constrUction of the Instruments, but also upon external circumstances, the Inferences of fact to be drawn from such papers should , be left to the jury.
3.
SAME-WITHDRAWAL OF' ISSUE
It is reversible error for the court to take from the jury the Issue as to whether or not the circumstances surrounding a contract were such that the employer must .have known that blasting would be necessary in order to' carry it Into effect, and to find that he had such knowledge, where he expressly denies It, and there is some evidence corroborating his denial.
In Error to the Circuit Court of the United States for the Western District of North Carolina. James H. Merrimon, for plaintiff in error. Charles A. Moore, for defendant in error. Before GOFF and SIMONTON, Circuit Judges, and PAUL, District Judge.
M'NAMEE V. HUNT.
299
SIMONTON, Circuit Judge. This caseoomes up by writ of error to the circuit court of the United States for the Western district of North Carolina. The action was brought against the owner of a lot of land in the city of Asheville, N. C., for whom 'an excavation was being made for the foundation of a building in that city. This excavation was effected by blasting; and the plaintiff below (defendant in error here) alleges that a piece of rock thrQlWn out by the blasting broke his leg, and inflicted serious injuries on him. The lase was tried before a jury, on complaint, answer, and testimony; and a verdict was found for the plaintiff below in the sum of $8,5tlO. After making a motion for a new trial, without avail, the plaintiff in error obtained his writ of error; and the case is before us ou 2,1 aS8ignments of error. The defendant below was the legal owner of the lot in Asheville. He desired to erect a brick building thereon for the use of a Young :\fen's Institute, and to that end obtained the cons'ent of the city :In· tborities to excavate a foundation and erect the building., He adveri.ised for bids for the excavating work, and finally agreed with one Britt, a contractor, for the completion <Yf the work for a lump sum of $G45. It is important to know the precise terms of the contract, and it is inserted here: "Biltmore, N. C., April 19th, 1892. "Bids will be received by the undersigned, up to and including the 23d April, for excavation of iot southeast corner of Eagle and Market streets. Lot is to be excavated entire length, 50 feet wide, from the line of Market street, and an average depth of 9 feet. Particulars can be obtained from the undersigned. Bids of stated sum for the entire work are preferred to those for culJic yard. Charles McNamee." "Asheville, N. C., Aprll 21st, 1892. "A bid for excavation of lot southeast corner of Eagle and Market street. Lot is to be excavated the entire 50 feet wide from line of Market street, and average depth of 9 feet, for the sum of nineteen cents (19c.) per cubic yard for earth; loose rock and hardpan, for the sum of twenty-five cents (25c) per cubic yard; hard rock, for the sum of sixty cents per cubic yard; or $M5.00 (six hundred and forty-five), lump job. ' "Yours, truly, E. H. Britt & Co. "To Charles McNamee, Biltmore, N. C."
"Biltmore, N. C., April 30th, 1892. "Mr. Elihu H. Britt, Asheville, N. C.-Dear Sir: Your offer to excavate for $645.90 lot at the southeast corner of Eagle and Market streets, in with the plans of the building, which you have seen, which show an excavation generally of about nine feet in depth the whole length of the lot, and fifty wide, is accepted, upon the follOWing conditions: First. The work is to be fully completed by the 21st day of May, 1892, under penalty of $5.00 for each day's delay after that date. Second. The excavation is to be done absolutely in accordance with the drawings; and your bid Includes the digging of trench around the exterlor lines of the excavation, as shown on the plans of the depth required by the architect. Third. The work to be neatly done' to t..'le full satisfaction of the architect, Mr. R. S. Smith, and is to ge paid fo;' only upon his certificate that the work has been properly completed. J!'ourth. The lines of the excavation and all the trenches. are to be given by the engineer,-probably, Mr. Olney. Please let me know if the terms of this letter are agreed to. If they are, you may begin work Monday morning. "Yours, truly, Charles McNamee."
Upon the receipt of which answer the said defendant, McNamee) wrote the said Britt as follows:
a
300
87 FEDERAL REPORTER.
The'gistof lhisaction is that Britt was a negligent and careless nlan, within the knowledge, or means of knowledge, of McNamee; that no provision was made in the contract for the .observance of proper precautions in doing a piece of work which, necessarily reouired blasting with explosive substances in the.heart of a city; that in fact the contractor did this work without taking such precautions, and so negligently that a piece of rock was thrown out by the blast, struck the leg of the plaintiff below, who was at the door of an hotelona pnblic street, out of sight of the blasting. The suit proceeded upon the principle of the exception to the rule that employers are not generally liable for the acts of contractors. It rests I)U the exception, which is that: "When a person Is engaged In a. work, In the ordinary doing of which a 'nuisance necessarily occurs, the person Is liable for any Injury which may occur to third persons from carelessness or negligence, though the work may be done by a contractor." Ware v. St. Paul Water Co., Fed. Cas. No. 17,172.
In affirming this case, the supreme court says: "Where the obstructIon or defect caused or created In the street Is purely collateral to the work contracted to be done and Is entirely the result of the wrongful acts of the contractor or his workmen, the rule Is that the employer Is not responsible. But where the obstruction or defect which occasioned the Injury results directly from the acts whIch the contractor agreed and was authorized to do, the person who employs the contractor, and authorizes him to do those acts, Is equally liable to the Injured party." Water Co. v. Ware, 16 Wall. 576.
The court adopts the language in City of Chicago v. Robbins, 2 Black, 428: "If the nuisance occurs necessarily In the ordInary mode of doing the work, the occupant or owner Is liable. But, If It Is from the negligence of the contractor or his servants, then he alone should be responsIble."
And adds: "Common justice requires the enforcement of that rul!!, as, If the contractor does the thing whIch he Is employed to do, the employer Is as responsible for the thing as If he had done It hImself; but If the act complained of is purely collateral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the work to be done."
This being so, a decisive question in the case is whether, when McNamee made this contract,he authorized blasting to be done in order to complete it; or, in other words, whether, in order to fulfil his contract, the contractor necessarily had to blast, and McNamee knew this. .If blasting was not in terms authorized, or if blasting was not necessary to be used in performing the contract of excavating the foundation, or if McNamee did not contemplate blasting, then blasting which injured the plaintiff below was purely collateral to the work contracted to be done, and McNamee would not be liable, because he never authorized blasting to be done. Examining the contract, we see that blasting is hot provided for in express terms. 'fhe advertisement called for bids at a stated sum, and not for bids by cubic yard. The bid does refer to excavating hard rock at so much per cubic yard. But, following the the lump sum offered is accepted, and nothing is said about blasting in the
301
acceptance. The general rule unquestionably is that it is the duty of the court to cons,true all written instruments. But where the effect of a written instrument collaterally introduced in evidence, as these papers are introduced here, depends, not merely upon the construction and meaning of the instrument, but upon extrinsic facts and circumstances, the inferences of fact to be drawn from it must be left to the jury. In Etting v. Bank, 11 Wheat. 59, Chief Justice Marshall, for the court, declares the law thus: "Although it is the province of the court to construe written instruments, yet when the effect of such instruments depends, not merely on the construction and meaning of the instruments, but upon collateral facts in pais, and extrinsic circumstances, the inferences of fact to be drawn from them are to be left to the jury."
The same principle is affirmed and applied in Barreda v. Silsbee, 21 How. 168. In Richardson v. City of Boston, 19 How. 270, it is expressed in this way: ·'It is the duty of the court to construe written Ins'truments, but their application to external objects described therein is the peculiar province of the jury."
In West v. Smith, 101 U. So 270, we find the doctrine expressed in these words: "Doubtless the general rule Is that It Is the province of the court to construe written Instruments. But It is equally well settled that when the effect ()f the Instrument depends, not merely on its construction and meaning, but upon collateral facts and circumstances, the Inference of fact to be drawn from the paper must be left to the jury; or, In other words, when the effect ()f a written Instrument collaterally Introduced In evidence depends, not merely on Its construction and meaning, but also on extrinsic facts and cireumstances, the Inferences to be drawn from it are Inferences of fact, and not of law, and, of course, are open to explanation."
When the construction does not depend in any degree on oral testimony or extrinsic facts, but wholly on the writing, a pure question of law is presented, which must be decided by the court. Hamilton v. Insurance Co., 136 U. S. 255, 10 Sup. Ct. 945; Hughes v. Mortgage Co., 140 U. So 104, 11 Sup. Ct. 727. The evidence tends to show that there was nothing in the surface appearance of this lot to indicate that blasting was necessary. McNamee, in his evidence, without objection, swore that there was not, that in fact he did not think there was any, and that in point of fact he did not suppose that there was any necessity for the use of blasting. There may have been an inference from Britt's bid that blasting was necessary, as he included in his bid a charge for removing "hard rock." But this was only an inference, and the offer was neither accepted nor noticed by McNamee. It therefore becomes a question of fact whether the condition of the soil where the foundation was to be dug was such that McNamee must have known that blasting was necessary, and also whether he did not acquire this knowledge during the performance of the contract. He denies any such knowledge. These questions of fact were for the jury to answer, but his honor, the presiding judge, in submitting the issues to the jury, took from them the seventh issue. It is in these words:
87 FEDEm;.(LREPORTER. "(7)Wastbe said Britt so employed 'with the knowledge, or In contemplation, on his [defendant's] part, that 'blasting witb gunpowder, dynamite, or other dangerou$agency, would be necessarY, or would be used, in making the excavation1"
His honor took this issue away from the jury, and it is marked, "Yes (by court)." In this we are of opinion that there was reversible error. This renders unneeessary any discussion of the other points raised on this writ. The judgment of the circuit court is reversed, and the cause is remanded to that court, with instructions to grant a new trial. Reversed: and remanded.
GAYNON v. DURKEE. (CircuIt Court of Appeals, Fifth Circuit. March I, 1898.)
No. 621. jJ'ELLOW SERVANTS-WHO ARB. The foreman of It railway
machIne shop, with authorIty to gIve orders to the men working In bis department, is the fellow servant of one of the men, there being a master mecbanic over both, witb authority to bire and discharge,l
In Error to the Oircuit District of Florida.
of the United States for the Southern '
'I'he plaintiff in error brougbt this' suit against the defendant In error to ['ecover damages for personal injuries received while In the employ of the defendant. The plaintiff In his declaration alleges, substantially, that on the 14th day of July, 1893, plaintiff was in the employ of the defendant, and was ordered, instructed, and required by one Kern, who was an emploYtl of the defendant, and who was the general foreman of the defendant's shops In Palatka, and under wbom the, plaintiff worked, and whose orders and instructions the plaintiff was required to obey, to mark a leak In the boiler or tubes of :a certain locomotive In the control and use of the defendant, said locomotive having steam generated therein, and the plaintiff entered the smoke box of said locomotive for the purpose of marking said leak; that said Kern was aware that the plaintiff had entered said smoke box, and that It was the duty of the defendant toprqvlde a reasonably safe place for the plaintiff to work, and keep the same reasonably safe while the plaintiff was working; that defendant knew it was necessary while plaintiff was in said smoke box to keep the throttles and valves of said locomotive closed, so as to prevent the steam from entering the smoke box, but the defendant recklessly, negligently, and carelessly omitted and neglected to keep said smoke box reasonably safe, and that while plaintiff was in said smoke box the said Kern, or some other person to plaintiff llnknown, recklessly, carelessly, and negligently opened the tbrottlesand valves of said locomotive, whereby the steam in salp locomotive entered sll,loke box, Inflicting great injury upon the plaintiff. To this declai'atlondefendant Interposed a demurrer, which was overruled by the court; whereupon defendant filed the general issue plea of not guilty, and a further plea of contributory negligence. A trial of the was had· upon Issue joined on these pleas. The facts In this case, as shown by the testimony, briefly stated, are as The plaintiff In error employed by the defendant in error as a boiler maker In. the railway shops situated in Palatka, Fla. These shops were 'the general'repalrshopsof the railway company, and such work was 1 As to who are fellow servants, see an elaborate note to Railroad Co.v. Smith, 8 C. C. A. 668, and supplementary note to Railway Co. v. Johnston, 9 C. C. A. 596.
