CONCURRING OPINION.
FARRINGTON, J.I write this concurring opinion in view of the fact that in oral argument and by a supplemental brief counsel for appellants laid much stress upon the contention that in all of respondent’s cases cited in which the employer was held for the act of the independent contractor the employers were always proprietors — either owners or lessees of the premises or property or owned some special interest therein — and that yddle the rule would apply to that relation because of the well-known maxim that “No one shall use his own property in a manner that will injure the person or property of another, ’ ’ it would not fasten such liability on a mere contractor who had sublet certain employment to an independent subcontractor.
I do not think the rule is founded on any such relationship but rather on the ground that where one owes a duty to do a certain thing it then becomes his further duty to so perform it as not to injure or damage the person or property of another.
*132The contractors (defendant construction company) had by the contract agreed to perform certain work. It was their duty to the landowner to do it. By their contract they had sufficient possession and control of the property to carry on that work. Their possession for that purpose was no less complete than a lessee’s possession of premises for the purposes of the lease, and there are many reported cases holding that a lessee will be responsible when the injury, such as occurred in this case, follows from the work, taking it out of the general rule as to independent contractors. [Loth v. Columbia Theatre Co., 197 Mo. 328, 94 S. W. 847.]
After defendants had entered into a contract and it became their duty to do this excavating, no reason suggests itself why they should owe any less degree of care to third persons than the proprietor of the land. The rule is based upon the doctrine of due care rather than on the ownership of the land or premises.
In the case of Baumeister v. Markham, 101 Ky. 122, 72 Am. St. Rep. 397, where the original contractor was held for the act of a subcontractor who was carrying on certain work under a subcontract, the following language was used: “Of course, the same duty is put upon and same liability for nonperformance of it is incurred by the principal contractor in temporary possession of real property for erection of a building thereon, and during prosecution of the business by a subcontractor. Besides, although the owner, or, as in this case, the original contractor is not generally answerable for negligence or wrongful act of an independent contractor or subcontractor, special circumstances may exist making him so.”
In the case of Creed v. Hartman, 29 N. Y. 591, the same defense was tendered as is made by the defendants here. The plaintiff recovered from the contractor for negligence occasioned by one Brady, a subcon*133tractor of the defendant, and the special defense was made “that the defendant, not being the owner of the premises, was not liable in this action.”
The case of The St. Paul Water Co. v. Ware, 16 Wall, 566, 21 L. Ed. 485, although not entirely clear, would seem from the opinion to be a recovery by plaintiff against a contractor who had sublet the work. [See, also: 1 Thompson on Negligence (2 Ed.), sec. 689, p. 625; and 26 Cyc. 1556.]
Upon reason and authority this contention made by the appellants must be ruled against them. The judgment should be affirmed.