This was an action on the case to recover damages sustained by the plaintiff for injuries resulting to *Page 224 him in consequence of the carelessness, negligence and unskillfulness of the defendant, its servants and agents in leveling and regulating Bloomingdale road in the city of New York. "Not guilty," was pleaded. The evidence established that the plaintiff, in August, 1847, was and had been for eighteen months or more previously, in the possession, with his family, of a dwelling house on the corner of Fortieth street and Broadway, in New York: that on the 12th day of December, 1846, James Foster, a contractor, made an agreement in writing with the defendants, through their street commissioner, to furnish all the materials and regulate said road between 23d and 42d streets, in conformity with a certain specification mentioned and described in the contract; and further, to conform the work to such further directions as should be given by the street commissioner and one of the city surveyors, for a certain consideration specified, and to complete the same on or before the first day of August, 1847.
It was proved that on the 19th day of August, 1847, the plaintiff, with his wife, three children or more and some boarders, occupied the upper part of the house: that the room next to Broadway was occupied as a sitting room: that Foster, the contractor, had made a contract with one Riley to do all the blasting of rocks on the job; and that Riley on that day bored a rock with four holes for blasting, on the job, opposite to and within thirty-two feet and eight inches of the plaintiff's house, and charged them with gunpowder. The charge was fired, by means of which several rocks of great weight and a large quantity of stones were thrown into the second story of the plaintiff's house, causing considerable damage to the property of the plaintiff, and personal injury to his wife, and the death of one of his children. Evidence was given tending to show that the blast from which the injuries resulted was negligently conducted, and that Foster was there that day, and had been frequently there before, superintending the work, and had been requested by one of the witnesses to be careful. *Page 225 When the evidence was closed on the part of the plaintiff, the counsel for the defendants moved for a nonsuit, which was denied, and an exception taken. The court charged the jury that if they believed that the contractor employed by the defendant to do the work had been guilty of negligence in blasting, and that the injury to the plaintiff was caused by such negligence, the plaintiff was entitled to recover compensation for certain injuries specified by the court.
The counsel for the defendant excepted to that part of the charge which held that the defendant was liable for the negligence of Foster, the contractor, or of the persons employed by him. This exception raises the only question for our determination; and in my opinion the exception was well taken. InBlake v. Ferris, (1 Selden, 48,) it was held that the liability of any one, other than the party actually guilty of any wrongful act, proceeds on the maxim, "Qui facit per alium facitper se." The party employing has the selection of the party employed, and it is reasonable that he who has made choice of an unskillful or careless person to execute his orders, should be responsible for an injury resulting from the want of skill or want of care of the person employed; but neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the relation of master or principal to the party by whose negligent act the injury has been occasioned.
If the injured party attempts to recover for his loss against any one other than him who is actually guilty of the wrongful act, it can only be on the ground that the relation of principal and agent, or master and servant existed between the party sued and the party doing the act. The contract made between the defendants and Foster to do the job of work in question, according to the doctrine of the case of Blake v. Ferris, and the cases which that is supposed to have followed, does not constitute the contractor, the agent or servant of the defendants, the employers. *Page 226 In the case of Rapson v. Cubitt, (9 Meeson Welsby. 710,) the defendant, Cubitt, was a builder, and had contracted with the committee of the Clarence Club to make certain alterations, c., in the club house, and amongst the rest to prepare and fit the necessary gas fittings. The defendant made a sub contract with Bland, a gas fitter, to execute that part of the work, and it was performed by Bland. In the course of the work, through his negligence the gas exploded and injured the plaintiff, a third person, who brought the action against Cubitt to recover for the injury on the ground that Bland was his servant. But the court were agreed that Bland did not stand in the relation of servant to Cubitt, but was a subcontractor with him, and to him the plaintiff must look for redress. The doctrine is, that a person who undertakes the erection of a building, or other work for his own benefit, is not responsible for injuries to third persons occasioned by the negligence of a person, or his servant, who is actually engaged in executing the whole work, under an independent employment or a general contract for that purpose. Foster was such a contractor, actually engaged in performing his contract for the entire job, for whose negligence, or that of his servants, the defendants are not liable.
The judgment must be reversed and a new trial granted, costs to abide the event.