Page:Harvard Law Review Volume 8.djvu/307

291 RECENT CASES. 29 1 brick-work having been completed, the engineer directed that the planking remain in place, and that the trench be filled by puddling, and not by tamping, as required by origi- nal contract. His directions were followed, and, the earth having subsequently settled, a service-pipe was wrenched from its connection at the main by the pressure of the plank- ing upon it. Four months later, the sewer having been completed and accepted by the city, the street caved in, and serious damage was found to have been done to the foun- dation of plaintiff's church, by the water flowing from the main and the sewer, which was found broken at that point. The cave-in was the first indication of any defect. Plaintiff sought to charge defendant as an independent contractor; but it was held, that he did not bear that relation to the city, since it reserved not only the power to direct as to the results of the work, but also the control over the manner of performing it, and had directed that the planking remain. As an additional ratio decidendi, the court applies the rule of Cttrtin v. Somerset, 140 Pa. St. 70, where it was held that an independent contractor owes no duty to third parties after the work has been taken off his hands by the owner. The causal connection between the contractor and the third party, in the event of damage, is taken to have been broken by the interposition of an independent responsible agent (Whart. Neg. §§ 438, 439), and contractor is not liable to such third party. First Pres. Cong. v. Smith, 30 Atl. R. 279 (Pa.). By adhering to Curtin v. Somerset, the Pennsylvania court again affirms the doctrine for which the case of Winterbottom v. Wright, lo M. & W. 109, is usually taken to stand. In England, a disposition has been shown to avoid the hardship of so strict a rule {George v. Skivington, L. R. 5 Ex. i ; Heaven v. Pender, L. R. 11 Q. B. D. 503) ; and the same is true of several jurisdictions in this country. See Blood Balm Co. v. Cooper, 83 Ga. 457 ; Shubert v. Clark Co., 51 N. W. R. 1103 (Minn.). The New York case of Thomas v. Winchester (6 N. Y. 397) might seem a departure from the strict rule, but the effect of that case was limited by two later decisions in the same juris- diction. Loop V. Litchfield, 42 N. Y. 351 ; Losee v. Clute, 51 N. Y. 494. Torts — Negligence — Duty of Contractor to One not a Party to the Contract. — The defendant agreed with a company to furnish staging for work which the company was to do on defendant's elevator. Deceased was killed by a fall caused by a defect in the staging, while he was thereon in the employ of the company. In an action by his administrator, it was held, that the defendant owed a duty to the deceased to exercise reasonable care, because there was an implied invitation to him to use the staging, and because there is a duty on every one to avoid acts imminently dangerous to human life. Bright v. Barnett &" Record Co., 60 N. W. Rep. 418 (Wis.). The facts of this case are in effect those of Heaven v. Pender, L. R. 1 1 Q. B. Div. 503, cited by the court; and the decision is put on the same grounds, either of which seems sufficient to support it. The second principle, however, is too broadly stated, and must be taken with reference to the facts. It is a case of the first impression in Wisconsin, though abundant authority is cited from other jurisdictions. Torts — Negligence of Master — Duty to guard Dangerous Machinery — Waiver. — Laws 1892, c. 673, require machinery to be properly guarded, and pro- vide that a neglect so to guard shall be criminal. Plaintiff, who had worked in defend- ants' factory some two years, was injured, in the course of his employment, by having his hand caught in a gearing. The jury answered the question as to contributory negli- gence and as to the sufficiency of the guard, in plaintiff's favor. It was held, that the plaintiff could recover, and that he could not waive the statutory protection. Simpson V. New York Rubber Co., 30 N. Y. Supp. 339. The decision as to the latter point goes upon the ground of public policy, and the case is taken as analogous to those arising under the usury statute, and also under the statute regulating the charges for elevating grain. It is admitted that "a servant accepts the service subject to the risks incident to it," and where, upon entering the employment, the machinery is of a certain kind and condition, to employe's knowledge, he volun- tarily assumes the risk involved in their use, " and can make no claim on the master to furnish other or different safeguards" [Sweeney v. Envelope Co., loi N. Y. 520). It is also admitted that parties can waive statutory provisions for their benefit, and can even make law for themselves which the courts will enforce, provided it is a matter exclusively of private right, and there is not, as here, a question of public policy in- volved {Sentemis v. Ladew 140 N. Y. 463). It is important to notice that Dykman, J., merely concurs in the result ; while Brown, P. J., does not agree that an employe cannot waive the statute, so far as it may be treated as having been enacted for the employe's benefit and protection, though he concurs in affirming the judgment. He points out that the rule laid down excludes not only waiver by continued use, but also waiver by express stipulation, and refuses to express an opinion upon it. On the whole, the case is not a strong authority for the proposition enunciated.