It is urged that the contractors and not the owners of the property, are liable for the damages sustained by Ormsby. And that inasmuch as it was not a necessary incident to the improvement, but was produced by the mode in which the work was performed, the appellants discharged their whole duty when they employed competent, skillful and prudent contractors, and can by no means be held liable for any neglect or default of theirs, whilst engaged upon the building or sidewalk. It seems to be conceded that the city was primarily liable, as the law has imposed the duty upon that body to keep the streets and sidewalks in a condition for safe and convenient transit of all persons. It is likewise conceded that the contractors who were engaged in the construction of the work are liable for a want of due care in its completion. But the question is presented, whether the owners of the freehold, by whom the contractors for the performance of the work were employed, are liable to the city.
It is a rule of very general, if not of universal application, that the master is liable for the negligence of his servant, whilst acting under the direction of the master. Then does this case come within the rule ? Were these contractors the servants of the owners ? That they are not, seems to us apparent. They were not bound to perform the labor under the direction of the owners, or their agents, but under their contract. It was not to them that the contractors looked for directions, but to the agreement. They were bound to furnish the materials and labor, and complete the building within a given time, and the owners had no right to control the selection of the materials or direct when the work should be performed, but only to look to their contract for its performance in pursuance to its terms, conditions and specifications. And the contractors, for the time being, were let into the actual possession and control of the property, and the owners excluded from its occupancy.
It is perfectly apparent that the mere fact that a person is the owner of the fee or the reversion of the premises, cannot create such a liability. If so, the negligence of a tenant for a term of years, a tenant in dower, by the courtesy, or any other tenancy, would create this liability. So of a disseizor or other wrong doer in possession. To hold the remainderman.or reversioner liable for such wrongs, would be to enable a tenant or other person in possession, to commit such acts as might be ruinous to the owner. It will hardly be contended, that if the appellants had let these premises to the contractors for a term of years, with the agreement that the rent should be paid by the erection of their building, according to the terms and specifications contained in the agreement, and this accident had occurred, that the appellants would have been liable to any person. They could by no rule of law, of which we have any knowledge, be liable in such a case.
The reason why the master is rendered liable for the negligent acts of his servant, resulting in injury to others, is because the servant, while he is engaged in the business of the master, is supposed to be acting under and in conformity to his directions, and to hold him to the employment of skillful and prudent servants. The presumption is one of law, and hence cannot be rebutted. But in this case the reason fails, and the presumption must also fail. These contractors, as we have seen, were not working under the directions or control of appellants, but under their contract, and were in no sense their servants. And the appellants had on their part neglected no duty, as they had employed skillful and competent contractors, accustomed to such business, and fully acquainted with the dangers' incident to its performance. Then upon what principle, or by force of what rule, is it that liability is incurred ? We are unable to perceive any which creates it.
All liability for injury sustained is based upon the theory, that the party liable has committed a wrong, or neglected some duty. That direct or consequential injury has resulted from the employment of immediate force, or the negligent performance of some legal duty, or in the negligent use of persons or property, whereby an injury has resulted to another. It seems to us that the doctrine would be productive of great wrong, to hold that when owners of real estate, who contract with reliable, competent and skillful builders, and deliver the premises into the actual exclusive possession of the contractors for a definite period, and when neither the contractors or their servants are under the control of the owners, that they must be liable for all of the negligent acts of the contractors and their servants. And whilst it may be true that some tribunals may have héld such to be the rule, other courts of equal authority have announced the opposite as the correct doctrine. That the adjudged cases are irreconcilably conflicting, seems to be true. This being the case, we feel ourselves at liberty to adopt the rule which seems to be most consonant with reason and justice. And we are the more ready to do so, when public policy interposes no obstacle.
It is supposed that the cases of Lesher v. Wabash Navigation Co., 14 Ill. 85, Hind v. Wabash Nav. Co., 15 Ill. 72, and the Chicago, St. Paul and Fond du Lac R. R. Co. v. McCarthy, 20 Ill. 385, are decisive of this question. In each of these cases, it was held, that the appropriation of timber from adjoining land, to the construction of the road, was by virtue and in pursuance of the authority granted by the company, and that when exercising that statutory authority, whether by themselves or their contractors, the company must be held responsible. It was regarded an important fact that the work was being performed under the directions of their engineer. In those cases, the law authorized the company to appropriate the timber to their use, and it was held that they had delegated the authority to the contractors. Whilst in this case the law had conferred upon appellants no power, to perform the act which resulted in the injury to Ormsby, nor did they authorize or direct the contractors to perform the act. The contractors had bound themselves to perform it, and it devolved upon them to obtain the requisite permission and authority. The negligence was wholly theirs, unnecessary to the accomplishment of the work, and in no way connected with its proper performance.
Had the necessary precautions been used, to have had a suitable plate to close the opening, when the grating was laid, or failing in that, had it been properly covered, the injury need not have been sustained. The contractors did not pretend to derive any power from appellants, to place materials in the street, but on the contrary, applied to and obtained permission from the city. We are, for these reasons, of the opinion, that the true rule in cases of this character is, if the nuisance necessarily occurs, 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, that he should alone be responsible. That this omission to cover the opening in the area did not necessarily occur as an incident to the prosecution of the work, but from the negligence of the contractors or their workmen, we think is manifest, and hence the appellants are not liable for the damage sustained by Ormsby.
The judgment of the court below is reversed, and the cause remanded.
Judgment reversed.