The defendant, at the request of the city of New London, undertook to build a new retaining wall for the purpose of widening the traveled part of a highway, using the materials in the old wall in constructing the new. The work required the use of a heavy derrick, supported by four guy-ropes, one of which crossed the highway at nearly right angles, the derrick and ropes being so placed as not to obstruct travel on the street. In lifting heavy stones the guy-rope over the street, unless supported by a prop, would slacken and drop, so as to interfere with travel for a few moments, and when the stone was dropped in its place, the rebound of the derrick would tighten the rope with considerable force. On one occasion, just as the rope was about to resume its position, it caught in the plaintiffs' carriage, and the plaintiff Mrs. Geer was injured. In a suit for the injury the Superior Court assessed the damages at $1,500. The defendant appealed.
The first two reasons of appeal raise the question whether the workmen with the derrick were the servants of the defendant or of the city. The latter was the defendant's contention. The Superior Court found and ruled against him.
The third reason of appeal is, that the court erred in holding the defendant liable notwithstanding his absence at the time of the accident.
The fourth and fifth reasons of appeal, being general, and mere conclusions from the first three, need not be separately considered.
1. Did the defendant and the workmen on the derrick sustain to each other the relation of master and servants? The finding is as follows: — "The defendant undertook to Jo this piece of work for the city of New London, and his remuneration therefor for himself was agreed to be measured *Page 225 by the days' and hours' work of himself mid his men on the job. The defendant was not employed by the city as an overseer or as a superior workman to superintend the operations of the inferior servants of the city of New London; the defendant hired and paid the workmen who did the work such wages weekly as he and they agreed upon; the workmen were fully under his control and direction, and without control or interference in any way of the city or its officers, and were the men who constituted his regular gang of workmen in jobs and contracts undertaken by him. The defendant selected his own machinery, tools and appliances, and commenced upon and prosecuted the work without any direction or control, on the part of the city or any of its agents, except at the beginning of the work, when the line, course, height and nature of the wall were pointed out to him by the chairman of the street committee."
This is explicit, and leaves little or no room for argument in support of the defendant's claim. The fact that the defendant's compensation was estimated by the day's work, instead of being a fixed sum for the whole job, is quite immaterial. Nor is it material that the city could abandon the work at its pleasure. Apparently it could not do so without violating its contract with the defendant, and that it might do in any case; but it still remains true that the city had no control over the workmen.
The question whether the city would or would not be liable on the ground of a defective or obstructed highway, is a question we need not consider. The work in its nature did not make the highway dangerous, so that the city did not necessarily incur any liability by causing the work to be done. The obstruction was the result of the negligent manner in which the work was done. Whether any liability attached to the city is not the question. The party guilty of negligence is clearly liable, and that is enough for our present purpose.
2. Is the defendant exempt from liability by reason of his absence when the accident happened? We see no reason why the rule that the master is liable for the negligence of *Page 226 his servant while acting within the scope of his employment, does not apply. The workmen, whose negligence was the immediate cause of the accident, were the servants of the defendant, and were doing his work at the time. That being so, his absence at that time, in contemplation of law was of no importance.
But there is another ground, less technical, on which we think he is clearly liable. We quote from the record. "I find that some days prior to this accident, and while the derrick was located at a spot a little further east on this causeway, the defendant had caused a prop or crotch to be used by his servants to take and hold up the slack of this north guy-rope when the boom was swinging, with its weight of stone, from the old wall to the new one; but while the derrick was located at the spot where it was when this accident occurred, he had neglected to use or cause to be used this prop or crotch, although it was necessary to the safety of travelers on said public way, and ordinary prudence and care required that it should be so used. The defendant did not conduct this work as a prudent and ordinarily careful person would have done under the circumstances, and I find that the same is true of his workmen and agents actually on this work at the time of this injury. I find that to conduct this work properly there was no necessity to allow the north guy-rope to drop down across the highway so as to interfere with vehicles thereon. I find that the work itself could have been done in a lawful manner and without danger to travelers on the highway, and that the existing danger arose entirely from the careless and negligent manner in which the operations of this derrick were conducted by the defendant and his servants."
This conclusively shows that the defendant was personally negligent, and fixes his liability beyond all question.
There is no error in the judgment.