In my view of the law, a contractor's servant cannot be permitted to maintain an action against the owner of the premises, merely because he is such a servant, unless the contractor could have maintained the action if he had been injured instead of his servant; and no facts are shown in this case that make it an exception to this rule.
The doctrine of respondeat superior can have no application in this case, for the work of building this power-house was not necessarily dangerous, but became so only because of the method the contractor employed to do the work (Bailey v. Railroad, 57 Vt. 252); and the work which the contractor was employed to do was nothing the law made it the defendants' duty to do for the plaintiff's benefit. Story v. Railroad, 70 N.H. 364. So if he can recover, it must be because the defendants — not the contractor — have failed to perform a duty the law imposed on them for the plaintiff's benefit. Pittsfield etc. Co. v. Shoe Co., 71 N.H. 522, 530. The first question, therefore, will be to inquire what duties the law imposes on a landowner for the benefit of others; and the second, whether there is any evidence from which it can be found that the defendants have failed to perform any duty the law imposed on them for the plaintiff's benefit.
The application of the elementary rule, that it is the duty of every one to use ordinary care in the conduct of his lawful business to avoid injuring those with whom he either knows, or ought to know, his business will bring him in contact, makes it the duty of a landowner to use such care either to keep his premises in such condition that those whom he invites to visit him can do so in safety, or to notify them of all the dangers incident to making the visit, of which he knows and they are ignorant. Also, when he furnishes instrumentalities for the use of those with whom he has no contractual relation, it is his duty to use such care to notify them of any defects in' the instrumentalities that make their use dangerous. Gagnon v. Dana, 69 N.H. 264, 266. Also, when he employs an independent contractor to do work upon his premises, and retains control of the premises and a general supervision over the work, the law imposes the same duty on him for the benefit of the contractor's servants, in respect to the way he maintains his premises and the instrumentalities that are provided for their use, that it imposes on him for the benefit of those who come upon his premises by his own invitation. Also, when he is occupying his premises jointly with the contractor, the law imposes the same duty on him for the benefit of those whom the contractor is authorized to bring upon the premises that it does for the benefit of those who come upon them by his own invitation. My attention has not been called to any case, in which the servant of an *Page 176 independent contractor has been permitted to recover from the owner of the premises, which did not fall within one of these last three classes, and where the plaintiff's right to recover was not put upon one of these grounds, rather than on the ground that the servants of such a contractor are invitees, and that the owner of the property owes them the same duties that the law imposes on him for the benefit of those who come upon his premises by his invitation. Stone v. Railroad, 19 N.H. 427, — 51 Am. Dec. 200, note. Consequently, before the plaintiff can recover, there must be some evidence from which it can be found either (1) that the defendants invited him to come upon their premises, (2) that they provided for his use the instrumentalities whose defective condition caused his injury, (3) that they retained control over the work, or (4) that they and the contractor were in joint occupation of the premises where the plaintiff was injured.
Notwithstanding the defendants were the owners of the land on which the contractor was building their power-house, there is no evidence from which it can be found that they were entitled to the possession at the time the plaintiff was injured. So it does not follow as a matter of law, from the fact that he was rightfully there, that he was there by their invitation. If he were, it would be his duty to leave the premises when they directed him to do so; and if he refused to go, they could maintain an action of trespass against him. It is obvious that if he was there as the contractor's servant, they could neither drive him from their premises, nor maintain an action of trespass against him if he refused to leave when they directed him to do so; for the contractor had a right, by virtue of the contract he had made with the defendants, to bring as many men upon the premises as he thought were reasonably necessary to do the work that he had undertaken to do. So it would be an answer to such an action for the servant to show that he was there by the contractor's invitation.
The relations which exist between a person who employs an independent contractor to erect a building upon his land and the men the contractor employs to do the work are very similar to those which exist between a landlord and the family or servants of his tenant. The agreement that an independent contractor makes with his employer carries with it by necessary implication the right to take possession of so much of his employer's land as is reasonably necessary for the purpose of doing the work, and to retain it for a reasonable time, and also the right to bring with him all the men he thinks are necessary to complete his contract. Although the agreement that a tenant makes with his landlord usually describes the premises he is to occupy and the time he is to occupy them, with more or less accuracy, it does not always do *Page 177 so; but a tenant's agreement, like that which an independent contractor makes with his employer, carries with it by necessary intendment the right to bring as many men upon the leased premises as he thinks are necessary to enable him to use the premises profitably for the purpose for which they were leased. The contractor's servants do not come upon the premises where he is to do the work by his employer's invitation, any more than a tenant's servants come upon the leased premises by the owner's invitation. In both cases the owner of the premises has parted for a time with his right to their possession, and in both cases he knew when he did it that the person to whom he had given the right of possession intended to bring with him the men necessary to enable him to effect the purpose that induced him to take possession of the property; but notwithstanding the owner knew this, he cannot be said to have invited the servants of either his contractor or tenant to come upon his premises. The servants of both are rightfully there because the right to the possession of the property carries with it by necessary intendment the right to bring as many men upon the premises as are reasonably necessary to effect the purpose which induced either the contractor or tenant to take possession of the property. Consequently, the right of their servants to be there does not depend upon the willingness or unwillingness the owner, but upon the willingness or unwillingness of their employer; for he could, and the owner of the property could not, drive them from the premises.
The test which determines when a tenant's servants can recover from his landlord is the result of the inquiry whether the tenant could have recovered if he had been injured instead of his servant. Towne v. Thompson,68 N.H. 317; Cate v. Blodgett, 70 N.H. 316; Bowe v. Hunking, 135 Mass. 380,383; Jaffe v. Harteau, 56 N.Y. 398. This also is the rule which would have been applied to determine whether the defendants could recover from the plaintiff they had brought an action of trespass against him, to recover the injury he did to their wires when he fell upon them; for in that case the test to determine whether or not they could cover would be to inquire whether they could have recovered from the contractor if he had done what the plaintiff did. Portsmouth Gas Light Co. v. Shanahan, 65 N.H. 233. If his contract would have authorized him to do what the plaintiff was doing when he was injured, they could not recover from the plaintiff; but if it would not have authorized the contractor to do what the plaintiff was doing, then they could recover from the plaintiff for whatever damage he did to their wires.
Since the test to determine whether the defendants could maintain an action against the plaintiff, for anything he did as the *Page 178 contractor's servant, would be to inquire what rights the contract conferred on the contractor in respect to occupying the defendants' premises, the test to determine whether the plaintiff can maintain this action should be to inquire what duties that contract imposed on the defendants for the contractor's benefit. This is the converse of the first proposition; so if that is sound, this must be.
There is another test which demonstrates the soundness of this proposition. That is the rule, that a judgment on the merits in favor of one party to an action is a bar to an action by the other party to recover for an injury growing out of the same state of facts; for it is a rule of universal application, that if A can recover from B in an action counting on B's failure to perform an imposed duty, B cannot recover from A for any injuries that he may have sustained in the same accident, caused by A's failure to perform some duties the law imposed on him for B's benefit. Gregg v. Company, 69 N.H. 247. Consequently, if the defendants had recovered from the plaintiff for the injuries he did to their wires, the judgment in that action would be a bar to the maintenance of this suit.
The reason that a servant of the tenant is ever permitted to recover from the landlord is not because the law imposes any duty on the landlord for the benefit of his tenant's servants, but because the law imposes the duty of doing what the ordinary man does to enable his guests to visit him in safety, both upon the landlord for the benefit of his tenant and upon the tenant for the benefit of his servants. Consequently, if the tenant's servant is injured by the tenant's failure to use such care, his servant can maintain an action against him to recover the damages he has sustained because of it; and the tenant can recover over from the landlord, if the landlord's fault was the legal cause of his failure to use ordinary care to enable his servant to do his work in safety. Gregg v. Company, 69 N.H. 247; Boston Maine R. R. v. Brackett, 71 N.H. 494; Boston Maine R. R. v. Sargent, 72 N.H. 455. The reason, therefore, that the tenant's servant is permitted to maintain an action against the landlord in the first instance, is not because the landlord has failed to perform any duty the law imposed on him for the servant's benefit, but to prevent circuity of action.
In short, the plaintiff was not using the staging at the time he was injured at the defendants' request, neither was he upon it in order to do their work. It was no more for the defendants' advantage to have the plaintiff use this staging in the way he was using it when he was injured, than it would have been to have him use the stairways in a factory they had leased to his employer. If he had used these, notwithstanding the defendants put them into the building to make it available for the purposes for which it *Page 179 was leased, and had been injured because of their defective condition, the test to determine whether he could recover from the defendants would be to inquire whether the contractor could have recovered if he had been injured instead of the plaintiff. Bowe v. Hunking, 135 Mass. 380, 383. Although it is true that the defendants knew, when they employed the contractor to build their power-house, that he must bring his servants with him in order to do the work they had employed him to do, it cannot be said that this is evidence from which it could be found that the men the contractor employed to do the work came upon the premises by the defendants' invitation, any more than it could be said that if they leased the power-house to the contractor after it was erected, the men he employed to run it came there by their invitation, from the fact that they knew when they leased it to him that he must bring men there in order to run it.
Neither can it be said that they came there by the defendants' invitation, from the fact that the defendants expected to receive some advantage from the work the contractor did upon their premises. If it could, it could also be said that a tenant's servants came upon his landlord's premises by the landlord's invitation, from the fact that the landlord expects to derive some benefit — his rent — from the work that his tenant's servants do on his (the landlord's) premises. The fact that the contractor was building this power-house for the defendants does not make the work of building it their work. If it does, whoever employs an independent contractor to build a ship, or to make a pair of shoes, is liable to the contractor's servants while they are engaged upon the work, in the same way and to the same extent as though they were his servants, notwithstanding he can have no choice in their selection or in the selection of the instrumentalities employed in doing the work.
When the contractor completed the building and the defendants paid him for it, the building would be theirs, and not before. P.S., c. 141, s. 10. In the same way the ship or shoes would become his property, and in the same way, when a tenant makes his rent out of the work he does in his tenement and pays it to his landlord, it becomes his landlord's money. In one case the owner invites the contractor to come upon his premises, and in the other he invites his tenant; and he does this in both cases because he expects to receive some benefit from their coming. So there is no logical reason for saying that he invites the servants of an independent contractor to visit him, and that he does not invite the servants of his tenant to come upon his premises.
As a matter of fact, an employer does not invite the contractor's servants to come upon his premises, neither does a landlord ordinarily invite his tenant's servants, although in both cases the *Page 180 owners of the premises know that the person they have invited intends to bring his servants with him, and are willing that he should so. In both cases they expect to receive some advantage from his coming, and in both his servants are rightfully there, not because the owners have invited them to be there, but because their employer had a right under his contract to bring them there, and brought them there in the exercise of that right.
There is no claim in this case that the defendants provided any instrumentalities to be used in the construction of the building, which was held in Mulchey v. Society, 125 Mass. 487, Coughtry v. Company, 56 N.Y. 124, John Spry Lumber Co. v. Duggan, 80 Ill. App. 394, Johnson v. Spear,76 Mich. 139, 143, and Bright v. Company, 88 Wis. 299, to impose on the employer, for the benefit of the contractor's servants, the duty of using ordinary care to see that the "instrumentalities" were suitable for the purpose for which they were provided. These cases do not hold that the employer owes an independent contractor's servants the same duty he owes to those who come upon his premises by his invitation but that if he furnishes "instrumentalities" for the use of the contractor's servants, he owes them the same duties in respect to such instrumentalities that the law would impose on him for the benefit of his own servants.
Neither is there any claim that the defendants retained any control over the work, which has been held in several cases (Samuelson v. Company,49 Mich. 164) to impose the same duties on the employer for the benefit of the contractor's servants that it would impose on him for the benefit of his own servants, or any one else that he invited to visit him.
Neither is there any valid foundation for the claim that the defendants and the contractor were in joint occupation of the premises. There is no evidence as to the terms of the contract, so it cannot be inferred that they intended for the contractor occupy any more of their premises than was necessary to enable him to do the work he had agreed to do, conveniently, economically, and without interfering unnecessarily with that part of the premises they occupied for other purposes. Neither can it be said that they intended for the contractor to build his staging in the way he did, if it was negligence for him to do so. In the absence of all evidence, there is a presumption that a man will use ordinary care. So in the absence of all evidence on this question, it must be presumed that the defendants did not expect him to build a staging near these wires, unless the ordinary man would have done it. Although it may be a matter of common knowledge that men use outside staging in erecting brick blocks when they can do so in safety, it is not a matter of common knowledge that ordinary men *Page 181 are accustomed to use such stagings when it is negligence to do so. It would be a confusion of terms to say that ordinary men are accustomed to do what it is negligence to do; for that would be only another way of saying that the ordinary man is accustomed to do what the ordinary man would not have done. There is no evidence from which it could be found that the contractor did not have the exclusive occupation of all the land necessary to enable him to erect the defendants' power-house conveniently and economically; for there is no evidence from which it can be found that it was reasonably necessary for him to build a staging where it was possible for his' workmen to come in contact with the defendants' wires, or that the defendants ought to have anticipated that he would do so when they employed him to do the work, unless it can be found that they ought to have anticipated it from the mere fact that it was possible for him to do so. It is obvious that there is no presumption that they intended him to do that which it was his duty not to do.
It cannot be found that the defendants were occupying that part of their premises on which the plaintiff was at work when he was injured, jointly with the contractor, from the fact that there was no evidence as to what part of the defendants' premises the contract contemplated should be set apart for the contractor's use; for not only is there no presumption that the defendants intended that the contractor should use that part of their premises unless it was reasonably necessary for him to do so, or build such a staging as he built if it was negligence to do so, but there is a presumption, when a person fails to introduce evidence in respect to the situation at the time he was injured which is apparently within his reach, that he does not do it because he knows that if he does it will tend to prove he has no case. Mitchell v. Railroad, 68 N.H. 96. Although there is a presumption, in the absence of all evidence, that a person was exercising ordinary care at the time he was injured (Tucker v. Railroad, ante, p. 132; Gahagan v. Railroad, 70 N.H. 441, 451; Smith v. Railroad, 70 N.H. 53; Lyman v. Railroad, 66 N.H. 200; Huntress v. Railroad, 66 N.H. 185), this is not because the absence of evidence is evidence that the person who relies on it was exercising ordinary care, but because there is a presumption in any given case that a person was exercising such care, from the fact that it was his duty to do so; for it is a matter of common knowledge that the ordinary man ordinarily does that which it is his duty to do.
It is apparent that the plaintiff could have put in evidence the contract between the contractor and the defendants, and the legitimate conclusion from his failure to do so is that the contract would show that the contractor had no right under it to do what *Page 182 the plaintiff was doing at the time he was injured. So, instead of no evidence being evidence in his favor, when it appears that the person who relies on it has failed to introduce evidence in respect to the matter which is within his control, his failure to produce it tends to prove that the facts are not what he claims they are; for it is a matter of common knowledge that a person ordinarily introduces all the evidence within his control which has any tendency to sustain his position.
The fact that these wires had been moved also tends to negative the idea that the defendants intended to occupy any part of their premises in connection with the contractor; and the fact that he built his staging where he did is at least as consistent with the theory that he built it in that place by the defendants' permission, as it is with the theory that he had a right to build it there. Consequently, it cannot be found from that evidence alone that the contract he made with the defendants authorized him to build it where he did (Deschenes v. Railroad, 69 N.H. 285; Spend v. Tomlinson, ante, p. 46); and it is obvious that if he was a mere licensee in respect to maintaining this staging, there was no such joint occupation of the premises as would impose a duty on the defendants for the benefit of the contractor's servants.
The burden of proof was on the plaintiff to establish every fact essential to his right to recover. This would include showing that the contractor had a right under his contract to occupy a part of the defendants' premises jointly with them, if he (the plaintiff) relies on the defendants' failure to perform a duty the law imposed on them because of such joint occupancy. This burden is not sustained by a failure to introduce any evidence as to the terms of the contract under which the contractor was building the powerhouse, when it is apparent that such evidence was within his reach. If the contractor's servants do not claim through him, but in their own right, — or, in other words, if the servants of an independent contractor come upon the owner's premises by his invitation, — it is manifest that the only way in which the defendants could have avoided liability, considering the business in which they were engaged, would have been to move their pole line to some place where the contractor's servants could not possibly come in contact with it, to shut down their plant whenever any of his men were on their premises, or to see that each man he employed knew of and appreciated the risk incident to coming in contact with these wires. For if it is not enough to avoid liability, to notify the person who is employed to do the work of all the dangers incident to doing it, of which the employer knows and of which the contractor is ignorant, as was done in this case, then any one who employs an independent contractor to do work, the *Page 183 doing of which is necessarily dangerous or which may become dangerous from the way in which the contractor does it, is liable not only for his own negligence, but also for the negligence of the contractor, if he could have anticipated that the contractor might be negligent. If the servants of such a contractor come upon the owner's premises by his invitation, he owes them the same duties that the law imposes on him for the benefit of his own servants, or of others whom he invites to come upon his premises, notwithstanding he can have nothing to do with their selection and cannot remove them from his premises except for a cause that would authorize him to remove the contractor; and this, no matter how ignorant or incompetent they may be. To illustrate: If a person should employ an independent contractor to take down coving that had become so rotten that it was liable to fall upon those who undertake to remove it, he must not only notify the person he employs to do the work of all the dangers incident to doing it, of which he knows and of which his contractor is ignorant, but he must also see that every man the contractor employs about the work is informed of all the dangers incident to doing it and that he fully appreciates the risk incident thereto, or answer in damages if he is injured because of a danger incident to doing the work of which he was not informed, notwithstanding the owner was particular to notify the contractor of risk incident to this particular defect.
If the contractor employs servants who are incapable of appreciating the risk incident to doing the work which the contractor was employed to do, on account of their youth or mental condition, there would seem to be no way in which the owner could escape liability; for it is obvious that he could neither discharge them, nor prevent the contractor from employing them, nor remove them from his premises without the contractor's consent, and merely telling them of the danger would not excuse him if they were incapable of appreciating the risk incident to doing the work. On the other hand, he would be liable to the contractor if he interfered with his servants, and hindered or prevented them from doing the work that he had employed them to do. In other words, if a person who employs an independent contractor permits the contractor's servants to do the work, he is liable to them for the injuries they may receive, notwithstanding they could not have been injured but for the contractor's negligence in doing that which his contract did not contemplate he should do, unless such a contract contemplates that the contractor will do everything it is possible for him to do; and if he prevents them from doing the work, he is liable to the contractor for any damages that he may sustain by reason of it.
If the contractor was lawfully in possession of the land covered by the building and stagings, and the defendants of that on which *Page 184 their poles were set and over which their wires were strung, — or, in other words, if they were adjoining proprietors with the division line midway between the nearest wire and the outside of the staging, — and if it is conceded that a landowner owes a common-law duty to an adjoining proprietor in respect to the structures on his premises, the verdict should have been set aside.
If the defendants did not do all that the ordinary man would have done to enable the contractor and his servants to do their work in safety, when they notified him of the danger of coming in contact with their wires, still the only duty they owed the plaintiff was that of using ordinary care to enable him to do his work in, safety; and the jury must have understood from the instructions which were given them subject to the defendants' exceptions, that in order to exercise such care the defendants must "use all the means and appliances known to the business of transmitting electricity, so as to insure as far as possible the" plaintiff's safety; for after instructing the jury, in substance, that it was the duty of the defendants to use' ordinary care to enable the plaintiff to do his work in safety, the court proceeded as follows: "To apply the principle of law I have stated to you, and which I have tried to illustrate, to the present case, I instruct you that . . . when a person or a corporation engages in the business of transmitting electricity in high voltage, — a voltage so high as to be dangerous to the lives and limbs of the persons who may come in contact with them while in the exercise of ordinary care, — it is the duty of such a person to use all the means and appliances known to the business of transmitting electricity, so as to insure as far as possible the safety of people who are lawfully near to, and likely to be exposed to, the wires."
It cannot be said, as a matter of law, that the jury were not prejudiced by these instructions, for it is conceded that they were erroneous. Neither can it be fairly found as a fact that the defendants were not prejudiced by them, from any evidence in the case, even if this court could pass upon that question without overruling Bullard v. Railroad, 64 N.H. 27, and all the cases that follow it. For this is not a case where the plaintiff tripped over an obstruction on his own land and fell upon the defendants' wires, but where he carelessly came in contact with them. If the defendants owed him any duty in respect to protecting him from such an injury, it could only be that of notifying him of the danger of coming in contact with their wires. So the question for the jury in this case (if the plaintiff was entitled to go to the jury) was not whether the defendants used every appliance known to electrical science to protect the plaintiff from injury, but whether they did all the ordinary man would have done when they notified his employer of the danger. *Page 185