The Portland daily press., 1878-02-18

| FEBRUARY CIVIL TERM, 1875 sYM0NDs, j.. PRE-
| SIDING.
| SATURDAY-Charles j. Mccarthy, by his father
as next friend, VS.. Canselo Winship and the Second
| Parish church.
This is an action of tort to recover compensation
for personal injuries sustained by the plaintiff boy
twelve years old, through the alleged negligence OIL
the defendants. The injuries complained of were
caused by the fall of ladder from the roof of the
Second Parish church upon the plaintiff. who was
| passing upon the sidewalk below. The accident oc-
CURED upon rainy and very windy day, the wind
in the morning blowing at the rate of twenty miles
an hour, and at at he rate of eighteen miles an
| hour.
1t appears by the evidence that Deacon LaIrabee,
the chairman Of the building committee and treas
urer Of the Second Parish, engaged the defendant,
Wnship slater of twenty years experience, to re-
pair leak IN the roof of the church. Winship SAYS
he told the chairman he would repair 1t, but that he
would not go upon the roof that day, it was too
windy; that his men would so if the deacon wished,
and thereupon to told him to go ahead. This con-
yersation Deacon Larrabee says that he does not
| recollect.
| Mr.. Winshp sent two of his men who in order to
gain to the roof went up in the tower and put
ladder out of the window the bottom resting upon
the roof about feet from the front of the church
and the upper end against the bottom Of the window.
There was no guard or warning below to notify ped
estrians that there any danger in passing. In
the afternoon the ladder blew over, and in falling
struck the plaintiff upon the side of the head, in
firling scalp wound crushing him to the ground,
spreading his legs apart and rupuring the periton
cum Deacon Larrabee was not about the building
at the time, does it appear that he had been there
that day. One other member of the building COM
mittee in the church, but he did not even know
that repairs were going on above.
Winship subsequently presented his bill to the
committee for making the repairs in which he
charged for materials furnished and one and one-haf
days labor, which was paid.
After the evidence was closed the counsel for the
plaintiff discontinued as to the defendant Wnship
The counsel for the Parish contended that the
men whose negligent act caused the injury not
the servants of the defendants within the meaning of
the law and that therefore the church was not liza
ble
Upon this question, which was the maiu one in Tie
case, the ruling of the court stated briefly was sub
stanially as follows:
II the person employed to do the work carries on
an independent employment, and acts in pursuance
of a contract with his employer, by which he has
agreed to do the work on certain specified terms in
aparticular manner and for a specified price, then
the employer is not liable. The relation of master
and servant in such case does not exist between
the PARTIES but only that of contractor and
tee. The power oil directing and controlling the work
is parted with by the employer and given TO the con-
tractor. On the other hand If work is done under
general employment, and is to be performed for
reasonable compensation for q stipulated price,
the employer remains LIABLE because he retains the
right and power OF directing and controlling the time
and manner of executing the work of refraining
from doing it, ii he deems necessary eXpedent.
Upon the question whether the emplo, is liable
for the negligence of workmen, the principal test is
whether the employer retains the right and power
TO control and direct the progress of the and
the manner in which it is to be done. One who con
tracts to 90 specific piece of work, urni, hing his
own assistants, and executing the work either en-
lrely according TO bis own ideas, in accordance
With plan previously given TO him by the person
for whom the work is done, without being subject
to the orders OF the latter in the details of
the work is clearly contractor and rot servant,
and the employer is not liable for his negligence
that OF his agents. On the other hand who is at
all times subject to the will OF his poyer and can
not properly refuse to obey his DIRECTIONS the
mode in which the work shall be done and as to the
persons to be employed upon it, is not contractor
but a servant and this, although the employer
should never exercise such CONTROL and the EN- poyee
should be paid by the job instead of by the day. |
The vital question is, was the negligent act done by
some person whom the Second Parish at that lime |
had the right to command, some person over whose
conduct they had control, whose operations they |
might direct, whose negligence they might restrain.
Ii the men whose negligent acts caused the damage
were at work upon the church by the authority of /
the Second Parish and subject the ntrol of
the Parish in regard to the manner of doing the
work. then understand the relation of Ter and Il
servant existed and the defendants would be liable.
The jury rendered verdict for the plaintiff for
$4,000.
n. Cleaves for plaintiff.
Thomas & Bird for ehucch.