On Motion for Rehearing.
Upon considering the motion for rehearing, we have concluded that it should be overruled in all things except as to the judgment in favor of J. P. Haynes against the appellant executors; and that, as to these parties, the motion should be sustained, that part of the judgment reversed, and the cause remanded for the purpose of determining whether, under the facts, the executors of Moore’s estate are entitled to recover over against Haynes the amount recovered against them by the plaintiff, Kopplin. We have come to this conclusion because we believe that the court erred in refusing to submit the issue between them to the jury and in peremptorily instructing the jury to find in favor of Haynes as against appellants on such issue. The contention of appellants is *1040that the fence, which was the proximate cause of plaintiff’s injury, was erected and maintained in dangerous proximity to the street car track by Haynes as an independent contractor for his own use and purpose in the performance of his contract, without the order or concurrence of either Moore or his agent charged with the supervision of the erection of the addition to the Moore building, without Moore’s knowledge of its being so erected or maintained. On the contrary, it is contended by Haynes that he placed the fence there, not as an independent contractor for his own use and behoof, but in obedience of the orders and directions of Moore’s agent who was charged with the duty of supervising the erection and construction of the building to be used in connection with placing and installing an engine, machinery, and appliances in the building not included or comprehended in his contract and with which he had nothing to do, and that Moore, with full knowledge of the erection and maintenance of the fence, ratified and acquiesced in its erection and maintenance in the street, knowing that the same was an unlawful obstruction of a public thoroughfare.
There was evidence tending to support either contention. If that of appellants were correct, Haynes would be liable over to Moore’s estate for any damages recovered against its executors by the plaintiff; but, if that of Haynes were shown to be true, no such liability would rest upon him.
Because the court refused to submit such issue to the jury and peremptorily charged it to find upon it in Haynes’ favor, the motion as between him and appellants is granted, but is in all things else overruled.
Overruled in part and granted in part.