ON MOTION FOR REHEARING. In the opinion promulgated on March 30, 1932, the court, speaking through Mr. Justice Angstman, found the evidence insufficient to warrant a judgment against defendant Roscoe, and, as to him, the cause was reversed. The opinion was agreed to by all the Justices. The defendant Schwieger and plaintiff severally moved for a rehearing. Upon consideration thereof the motion was denied as to defendant Schwieger, and the opinion, as to him, was left undisturbed. Upon consideration of plaintiff's motion and a review of the evidence, the court unanimously decided that its original opinion as to defendant Roscoe was wrong, and, speaking through Mr. Justice Angstman, amended the opinion, affirming the judgment as to defendant Roscoe as well as defendant Schwieger. Plaintiff's motion for rehearing was denied pro forma. The opinion as amended was filed May 7, 1932. In due time thereafter, defendant Roscoe moved for a rehearing. After a careful examination of all the evidence, the majority of the court is of the opinion that the decision first promulgated, as it affects the defendant Roscoe was correct and the amended opinion of May 7 is ordered stricken. That this action is correct appears from the following facts:
The complaint alleges that Roscoe was the servant of Schwieger "in the construction of the highway and culvert and in protecting said work and the safety of the public in connection therewith." Roscoe's answer admits that he was the servant of Schwieger "in and about the construction of the culvert," but denies the remaining allegations.
The evidence would indicate that Roscoe was an independent contractor rather than an employee, but, as will appear later, *Page 353 it is immaterial in which capacity he erected the culvert. The evidence is undisputed that he had nothing to do with the construction of the highway except to place the culvert in a cut left and prepared for that purpose, and that his work was completed, the forms removed, and the workmen and material withdrawn from the project at least two days before plaintiff sustained his injuries.
It is contended that there is a conflict in the evidence as to whether or not the concrete culvert had sufficiently dried to permit the filling in around it, and it is disputed that Roscoe's work had not been accepted and approved at the time of the accident. The evidence on which plaintiff relies in this regard hardly rises to the dignity of creating a conflict; certainly, the clear preponderance of the evidence is against plaintiff's contention.
The highway engineer in charge, Woodward, testified that a concrete structure is "completed" as soon as it is poured, "but it isn't hardened enough so that we can cover it until after seven days. The work can be done but we can't take the forms from the inside for seven days. The outside can be removed in twenty-four hours." Speaking of the instant culvert, he said, "The forms were removed on the last day of August, I saw them."
The testimony which is said to contradict Woodward is as follows: Adams, whose duty it was to make the fill, speaking generally, said: "We have to wait a certain length of time, * * * a lot of times twenty to twenty-one days after she is poured; a lot of them are sometimes different; well, it depends on what the engineer says about it; sometimes they will let you a little earlier * * * than twenty-one days." In other words, the engineer in charge, in this instance Woodward, is the one to say when the fill may be made, while in some instances conditions require a wait of twenty days or more; in this instance the fill could have been made September 1.
One Stone, an employee of Adams, merely testified that he knew that a cut should not be filled while the concrete was "green"; asked if the drying time was not usually from *Page 354 twenty-one to twenty-eight days, he replied that he did not know; that he had had no experience with concrete work.
However, it is unimportant as to whether or not there was a conflict in the evidence on the subject; so long as the duty to maintain an adequate barrier and detour sign at the point where the road was closed was performed, the condition of the closed portion of the construction, including the location of the culvert, was immaterial. The requirement of the erection of the barrier and the closing of the road presupposes that beyond the barrier lies a danger zone.
It is also unimportant that Roscoe's work had not been "accepted." It was completed and he had withdrawn all control over it, so that it was at the time of the accident but an integral part of the unfinished highway, no part of which would be accepted until Schwieger's entire contract had been fully executed.
Roscoe visited the site of the culvert the day before the accident to see that the work was satisfactorily completed and that all of his property had been removed therefrom, but on that visit he came from the west and departed by the way he came; he did not therefore have occasion to note whether or not the barrier, located approximately half a mile to the east of the culvert, was in position.
As to the rules of law applicable to the situation disclosed[10-12] by the foregoing evidence: One who renders service in the course of an occupation, and therein represents his employer's will only as to the result of his work, and not as to the means whereby it is accomplished, is usually an independent contractor, and he, and he alone, must respond for the injuries resulting during the progress of the work; but if, in the performance of the work, the necessary or probable result will be injury to third persons, both the contractor and contractee will be liable, the latter under the doctrine of respondeatsuperior. (See Neyman v. Pincus, 82 Mont. 467,267 P. 805.)
"The general rule is well established that an independent contractor is not liable for injuries to third persons, occurring *Page 355 after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him * * *; the latter is substituted as the responsible party. The reason for the substitution of liability is found in the general doctrine that an action for negligence will not lie unless the defendant was under some duty to the injured party at the time and place where the injury occurred which he omitted to perform." (14 R.C.L. 107.) The cases cited in support of the above text are of that class wherein an owner or contractor employs an independent contractor to work upon premises the possession of, and control over, which is surrendered to him, and consequently the independent contractor is not relieved of responsibility until his work has been accepted and the premises revert to the control of the owner or original contractor. Such is not the case here; as shown above the original contractor, Schwieger, was at all times in control of the entire projected highway, the dangerous condition existing at the culvert being but a part thereof. Schwieger was, under the contract, required to maintain the barrier and detour sign to protect the public from the dangerous condition created by the excavating for the installation of the culvert from the time it was left in the highway under construction until the entire highway was completed and opened for travel. It is clear that the situation is such that the rule of respondeat superior applies.
While it is shown that Roscoe's employees removed a portion of the barricade while hauling material to the culvert, it is undisputed that, on each occasion when this was done, the barricade was replaced as soon as a truck went through the opening thus made, and there is not a scintilla of evidence to show that Roscoe or his employees had any other knowledge than that the barricade was up at the time they left the premises, or that Roscoe knew the condition of the highway, east of the culvert, on September 1.
Either an independent contractor or a servant is liable to a third person injured by reason of the negligent handling of property when he owes a duty to such third person, but he *Page 356 owes a duty to protect third persons only when he has such control over the property as the master or contractee would otherwise have. (Hagerty v. Montana Ore Purchasing Co.,38 Mont. 69, 25 L.R.A. (n.s.) 356, 98 P. 643.) It is the owner, occupier or person in charge of premises who is in duty bound to keep the premises in a reasonably safe condition, so that those whom he has invited to enter upon them shall not be unreasonably exposed to danger, and one charged with this duty, who fails to prevent entry by means of proper barricades or warning signs, impliedly invites those who otherwise might lawfully enter, to come upon the dangerous premises. If, through his negligence to perform this duty, persons enter and are injured, he, and not his servant or an independent contractor who owed no such duty to the public, is liable for damages suffered by reason of his negligence. (3 Shearman Redfield on Law of Negligence, 6th ed., 699; 45 C.J. 823-826; Montague v. Hanson, 38 Mont. 376,99 P. 1063.)
On the day of the accident, Roscoe was neither "owner, occupier nor person in charge" of any portion of the new grade, and at no time had he been charged with the duty of maintaining a barrier at the point where the detour marked the end of the constructed grade and opened highway.
The judgment is sustained as to defendant Schwieger and reversed as to defendant Roscoe. Remittitur shall issue forthwith.