1. This Court cannot decide that a charge is wrong which submits
it to the jury to say whether a wharf was a public place upon which
all persons were accustomed to come and go at pleasure, and were by
law permitted so to do, when the record does not contain the
evidence upon which the question arose. The court cannot assume
that the charge was erroneous.
2. The general rule is that when an injury has been sustained by
the negligent manner in which a wharf or other work is constructed
or protected, the principal is liable for the acts and negligence
of the agent in the course of the employment, although he did not
authorize or know of the acts complained of. When the actor ceases
to be a servant or agent and is, himself, the master, he alone is
responsible.
3. When a contractor agrees with a railroad company to furnish
the materials and labor for building a wharf, to put in posts,
piles &c., as the company should require, making an old wharf
as good as new, and a new one in the most workmanlike manner; to
submit to the supervisor and direction of the company's engineer,
and to do the work to his satisfaction,
held that the
company had the general and special control of the work, and that
the contractor was their agent; and that the company was
responsible for an injury occurring through the negligence of the
contractor or of those in his employment.
4. An act of the General Assembly of the State of Louisiana,
referring to a certain railroad corporation, enacted that the said
corporation should
Page 82 U. S. 650
not be liable for debts incurred by those who should contract
with it for building its road &c., "nor shall said company be
liable for any injury to person or property caused by the act or
omission of the persons so contracting with it."
Held that
this was a convenient form of declaring the common law rights of
the company, and conferred no exemption on it.
5. Until notice has been given of the changed character of the
place, one passing over a wharf or platform over which the public
has been accustomed to pass cannot be made a trespasser for so
passing, although the wharf or platform is now no longer used for
the purpose of passage.
The New Orleans, Mobile & Chattanooga Railroad Company --
the station house grounds of whose road in New Orleans came down in
one part of the city to the
batture of the Mississippi --
obtained conveyances of the
batture property in front, the
same being accurately described by maps annexed to them, and were
desirous of building in front of their
batture a wharf on
the river and also of repairing an old wharf there.
With a view of enabling them to do this, the General Assembly of
Louisiana, by a joint resolution passed March 6, 1869, gave the
company:
"The right to enclose and occupy for its purposes and uses, and
in such manner as the directors of the said company may determine,
that portion of the levee, batture, and wharf, in the City of New
Orleans, between and from [certain streets described] to the lower
line of the batture, rights owned by said company."
And the joint resolution provided that:
"No steamship or other vessel shall occupy or lie at said wharf
or receive or discharge cargo thereat except by and with the
consent of the said company."
On the 21st of January, 1870, the General Assembly also passed
an act [
Footnote 1] relating to
the company whose second section was in these words:
Page 82 U. S. 651
"The said corporation, its officers, or employees, shall not in
any case be liable for any debts contracted or liabilities incurred
by any person or persons who shall have contracted, or who shall
contract with it, to
construct any portion of its road,
buildings, or appurtenances, or its rolling stock, or to furnish
any materials or labor to be used for such construction, or for its
maintenance or operation."
"
Nor shall said company, its officers, or employees be
liable for any injury to person or property, or loss of life which
shall be caused by any act or omission of any person or persons so
contracting with it,\ or any of his or their employees or
agents."
In this state of things, on the 28th of November, 1870, the
railroad company, through its division engineer, G. W. Bayley, made
an agreement with one Michael Carvin, thus:
"Michael Carvin agrees to furnish the timber, planking, and iron
work, and all the labor necessary for the rebuilding of the
company's wharf in front of their depot grounds, . . . with such
mooring posts, cluster piles for fenders every twenty feet, rows of
piles on boundary lines, above and below, slips or inclines, as the
company, through their engineer, may require, for the sum of $40
per square of one hundred square feet, it being understood that
only the best quality of twelve-inch square yellow pine timber
shall be used for piles, caps, stringers, fenders, and blocking,
and the best of three-inch yellow pine planks for covering or
flooring, such of the old piles as are sound and good to be sawed
off and blocks placed thereon, but new caps, stringers, and
planking to be used throughout. The old wharf to be made as good as
new, and the new wharf in the best workmanlike manner, two hundred
feet of wharf, from the lower line, to be completed in two weeks
and the whole within one month from this date."
"It is also understood and agreed that the said G. W. Bayley,
division engineer of the company, shall supervise and direct the
work hereby agreed to be done, and that the said work shall be done
to his satisfaction."
"Payment to be made in currency, on the 10th of January, 1871,
the company's regular payday, at the rate of $40 per square for
completed wharf as above specified, on the approval of the estimate
or bill for same by said G. W. Bayley, division engineer. "
Page 82 U. S. 652
During the progress of the work thus provided for, one Hanning,
while walking, as he alleged, across the wharf and using all proper
precautions, was precipitated down an embankment the distance of
ten feet and received serious injury, the injury, as he further
alleged, being wholly caused by the company's negligently removing
the planks on the wharf and negligently laying the planking thereon
contrary to its obligations in the matter. He accordingly sued the
company, alleging that the wharf was a "public wharf."
The place where the wharf was, it appeared, prior to the passage
of the joint resolution of March 6, 1869, authorizing the railroad
company to enclose and occupy it for its own purposes and uses,
had, like the banks of all rivers in Louisiana, from an early date,
been open to the public for passing along.
The court below, refusing to give instructions requested by the
plaintiff of an opposite kind, charged that if the jury should
believe from the evidence that the wharf had always been free and
open to the public, then that when the legislature gave to the
company the right to occupy it, it was the duty of the company to
take means to warn the public that the rights of the public had
ceased, so that persons might avoid going upon it, and that as the
company had neglected to take any precautions in this respect, they
were liable for the damage.
It also charged that the company was answerable for the acts of
its contractor, under the contract with Carvin.
The jury found $10,000 damages for the plaintiff, and judgment
being entered accordingly, the present writ of error was taken.
The record sent here was a meager one. It did not furnish any
evidence of what sort of a wharf, as
ex gr., whether
public or private, this wharf was, further than as might be
inferred from the joint resolution of March 6, 1869, the
conveyances of property adjoining it, and the contract with Carvin.
Neither did it appear what brought the plaintiff on the wharf,
whether lawful business, idleness, curiosity, or some bad
purpose.
Page 82 U. S. 655
MR. JUSTICE HUNT delivered the opinion of the Court.
The first objection presented by the defendant below is that the
wharf in question was not a public wharf; that the plaintiff came
upon the same without business, invitation, or inducement; that he
was a trespasser, and if he suffered injury it was in consequence
of his own wrong.
We are not furnished with the evidence necessary for the
decision of this question. The record does not state whether this
was the wharf of an active steamboat company, where all travelers
were permitted and substantially invited to come and go; whether
the plaintiff was there upon the special invitation of someone
connected with the wharf; whether by public use and general
permission he might deem himself invited to be there, or whether he
was an idler without pretense of right or business. The judge
submitted the question to the jury, whether the wharf, at the time
of the accident, was and for many years had been a public place
upon which all people were permitted by law to come and go and did
come and go at pleasure. The jury found the affirmative of this
proposition. The only evidence set forth on this point contained in
the record is the legislative resolution of March 6, 1869, certain
conveyances of property adjoining the wharf, as described in maps
annexed, and the contract of the company with Carvin. The
resolution authorizes the defendants to enclose and occupy for its
use certain portions of the levee, batture, and wharf in the City
of New Orleans, and provides that no vessel shall occupy
Page 82 U. S. 656
said wharf except by the permission of the company. The contract
with Carvin is important upon another branch of the case, but has
no significance upon the question of the manner of occupying the
wharf, or to show how or why the plaintiff was on the wharf at the
time he received the injury. So far as it states general rules and
propositions, the charge of the judge seems to be correct. Whether
it was sound as applied to the case presented by the evidence we
have not the means of ascertaining. No error appears, and we cannot
assume that it is erroneous.
The second objection urged by the defendant below, arises upon
the contract with Carvin, already mentioned. It is insisted that
the wharf at the time of the accident was in the possession of
Carvin, that the negligence, if any, was his, not that of the
company, and that the company is not responsible for any negligence
by him or those employed by him.
By this contract Carvin agrees: 1, to furnish the materials and
the labor necessary for the rebuilding of the wharf in question; 2,
to build it with such mooring posts, cluster piles for fenders
every twenty feet, rows of piles on boundary lines above and below,
slips or inclines, as the company, through their engineer, may
require, making the old wharf as good as new, and the new in the
most workmanlike manner; 3, to complete the whole within a month;
4, to submit to the supervision and direction of the engineer of
the company; 5, to do the work to his satisfaction. The company do
not yield to Carvin the possession or control of the wharf. They
may direct the number of mooring posts, cluster piles for fenders,
rows of piles, slips, and inclines, paying according to the number
of square feet covered. They are at liberty to direct how much
material shall be used and how it shall be laid to make the old
wharf as good as new, and to make the new of the best workmanship.
They are to supervise the work to be done. They are to direct how
it shall be done. This includes the power of controlling and
managing the entire performance of the
Page 82 U. S. 657
work, within the general limits mentioned. It includes the
possession of the wharf, the direction, management, and control of
all the details of the work. It makes Carvin their agent and
servant, receiving a larger or smaller compensation as they may
expand or contract his work.
The rule extracted from the cases is this: the principal is
liable for the acts and negligence of the agent in the course of
his employment, although he did not authorize or did not know of
the acts complained of. [
Footnote
2] So long as he stands in the relation of principal or master
to the wrongdoer, the owner is responsible for his acts. When he
ceases to be such and the actor is himself the principal and
master, not a servant or agent, he alone is responsible. Difficult
questions arise in the application of this rule. Nice shades of
distinction exist, and many of the cases are hard to be reconciled.
Here the general management and control of the work was reserved to
the company. Its extent in many particulars was not prescribed. How
and in what manner the wharf was to be built was not pointed out.
That, rebuilt, was to be as good as new. The new was to be of the
best workmanship. This is quite indefinite and authorizes not only,
but requires a great amount of care and direction on the part of
the company. The submission of the whole work to the direction of
the company's engineer is evidence, although not conclusive, that
the company retain the management and control. The reservation of
authority is both comprehensive and minute. The company have the
general control, and it may prescribe where each pile shall go,
where each plank shall be laid, where each stringer shall be put
down, where each nail shall be driven. All the details are to be
completed under their orders and according to their direction. The
contractor undertakes in general terms to do the work well. The
company reserve the power not only to direct what shall be done,
but how it shall be done. This is an important test of liability.
[
Footnote 3]
Camp v. Wardens, [
Footnote 4] was a case arising in Louisiana,
Page 82 U. S. 658
and very much like the present in its facts. The owners were
there held liable. All the authorities are cited and commented upon
by the court, both of the common and the civil law. The civil law,
it was said, held the same rules on this subject as the common law.
[
Footnote 5]
In
Painter v. Mayor, [
Footnote 6] Strong, J., holds the defendant not to be
liable, and says, "The defendants have no control over the men
employed by the contractors or over the contractors themselves.
They could not dismiss them or direct the work." The cases are
reviewed and the rule laid down as it is herein above stated.
Knight v. Fox, [
Footnote 7] and
Steel v. Southeastern Railroad
Co., [
Footnote 8] are
cited by the defendant. The first contains nothing in hostility to
the suggestion made. In
Steel v. Southeastern Railroad
Co., it was held that the company was not liable for any
injury done by the contractor, and the contract contained an
authority to the company to superintend and direct the work. The
case shows that the act which caused the injury was committed in
violation of their orders. They expressly forbade the digging of a
certain channel. It was dug in violation of this direction, and for
the damage resulting therefrom the court held them not to be
liable. This order, to the contrary does, not necessarily exempt
the principal, but it is a circumstance of weight. [
Footnote 9]
It is said that by the act of the General Assembly, passed
January 21, 1870, the liability of this corporation is defined in a
number of cases. The second section of the act declares
"That the said corporation, its officers or employees, shall not
in any case be liable for any debts contracted or liabilities
incurred by any person or persons who shall have contracted, or who
shall contract with it, to
construct any portion
Page 82 U. S. 659
of its road, buildings, or appurtenances, or its rolling
stock, or to furnish any materials or labor to be used for such
construction, or for its maintenance or operation. Nor shall said
company, its officers or employees be liable for any injury to
person or property or loss of life which shall be caused by any act
or omission of any person or persons so contracting with it or any
of his or their employees or agents."
This was doubtless intended as a declaration of the rights of
the company convenient to be embodied in its charter, and is in
affirmance of the existing law. It contains two general principles:
1st, that the corporation shall not be liable for the debts to
third parties of those contracting to construct its road or to
furnish materials therefor. It would not be upon general principles
of law. The statement, in fact, confers no exemption. 2d, that it
shall not be liable for injury to person or property caused by the
acts of such contractors or their servants. In each of these
instances, the exemption is in the case of contractors, who are
themselves the principals, not when they are the agents or servants
of the company. In each case, there could be no liability at common
law had the statute not been passed. We think that upon general
principles of law, the company in this case are responsible for the
negligence of Carvin, and that this statute does not alter its
position.
It would seem that, prior to the passage of the act authorizing
the defendants to occupy and possess the wharf, it had been open to
the public, free to the passage of all at their pleasure to come
and go. The judge charged in substance that this right of passage
to the public continued until some notice should be given to those
accustomed to use it that their rights had ended. This principle is
one of quite general application. A railroad or steamboat company,
by the departure and arrival of their conveyances, give an
invitation to all who desire to approach their boats or cars to
pass over their wharf or platform. One accustomed so to pass cannot
be deemed a trespasser in repeating his act after a new station or
landing has been adopted and the cars or boats have ceased to use
the old one. To exclude the
Page 82 U. S. 660
passer's right so as to make him in fault, and to prevent his
recovery for an injury sustained by leaving the place in a bad
condition, notice must have been given of its changed character and
that the rights of passers are terminated. This principle is so
familiar, and exists in so many forms, that it is unnecessary to
elaborate it. [
Footnote
10]
Upon the whole record, we are all of the opinion that the
judgment should be
Affirmed.
[
Footnote 1]
No. 31, Sessions Acts, p. 35.
[
Footnote 2]
Story on Agency § 452; 2 Addison on Torts 343, 2d
edition.
[
Footnote 3]
Kelly v. Mayor, 11 N.Y. 432 vol. xv.
[
Footnote 4]
7 La.Ann. 322.
[
Footnote 5]
Pothier on Obligations, §§ 121, 453; Droit Civil, de
Touillier, Book 2, tit. 8, § 284, vol. 2.
[
Footnote 6]
46 Pa.St. 213.
[
Footnote 7]
1 English Law & Equity 477.
[
Footnote 8]
32
id. 366.
[
Footnote 9]
Pack v. Mayor, 8 N.Y. 222;
see also Storrs v. City
of Utica, 17
id. 104;
Higgins v. Watervliet
Turnpike Co., 46
id. 23;
Robbins v.
Chicago, 4 Wall. 679.
[
Footnote 10]
2 Addison on Torts 141;
Corby v. Hill, 4 Common Bench,
N.S. 556.
