Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-12-05
RESCRIPTS.
fur Decisions from the
Law Court.
nninions in Three Penobscot
Cases by Justice Spear.
A.. Androseoggin Rcscript from Justice
Strout.

,sabelI Reyes VS.. Second Baptist
church. EeScript.
Spear, j.
This is an action Cor the recovery Of
.amages for personal injuries and
o,nes up on motion and exceptions.
rbe defendants are the owners of a
.h,r,h ediiice situated on Columbia
s,roe, in the city of Bangor. They
,.ore making alterations in the edificc
ord stagjngs had been erected for the
'r,eecution Of the work On the MORN
n. Of July 2Sth, 1902. the plaintiff had
arcasion to pass along Columbia street
,ast the church and IN SO doing went
,nder the staging. When near the GEN.
tor Of the church a piece of green hem
,oct hoard fell, some IS or 40 feet, from
staging. striking the plaintiff upon
tho head ard shoulders and producing
the injuries of which she complains.
IRE ulaintifI claims to iecOver, not be-
muse the piece of board fell, for there
;s no evidence with respect to how that
b.nnened but because the defendants
did not properly perform the duty rest
ing unon them, under the circum-
stances of the case, in erecting suitable
earnings and safeguards. across the
Sidewalk at each side of the church to
give notice to travellers of the danger
attendant upon passing under the stag
ings.
The defendants lain that they arc
not liable even if proper safeguards
were required and not erected, on the
ground that the duty Of erecting them
h. n n Int
upon Otto Nelson who vas doing the
carpenter work upon the church as an
independent contractor.
On the contrary, while claiming that
the defendants are directly liable the
rlantiff asserts that granting the
position taken by the defendants that
Nelson was an independent contractor,
vet they are not released from liability.
AZ the case comes within the we'll
established rule that they cannot shun
their responsibility by an independent
contract when such contract involves
acts which will constitute nuisance
unless properly guarded against. or in
wolves duty to the public or third
person, Woodman VS.. metropolitan
Railroad, l49 Mass, p. 1856; Miller vs..
White. 9S Maine. p. 1876. OF (which will
necessarily bring wrongful conse-
uuences, or that cannot be performed
under the right of the employer who
retains the right Of access, Boomer vs.
Wilbur. l76 Mass. y. 1872 and numerous
other cases to the same effect. But q
decision of this case does not neces-
e. sariIy involve a further consideration
Of the question of independent contrac-
tor although the exceptions do not
SNOW. upon which ground the Presld-
ing Justice ruled, as 4 matter of law.
that the duty Of providing sufnclent
safeguards and precautions rested upon
the defendant society. If upon either
ground the ruling was correct. the ex-
ceptiors must be ovcrruled. This de-
ponds of course upon the construction
of the contract Of the defendants with
Nelson to do the work. What cOnsti-
Rollins lGl Mass. y. 123. What consti-
tutcs an ildependcut contractor within
the meaning of the law appilcable 10
tits class of cases is stated IN Mctarty
vs.. Se,old Parish of Portland, 10 pe
'one vho carries on an independent,
business, and. in the line of his bust
u"Ss. i cmlloycd TO do 4 job nj work
and in doing it, does not act under the
direction and control Of his employer
but determines for himself in what
manner it shall be done"
The contract of the defendants with
otto Nelson is in the form of a letter
written by Mr.. Nelson to the Church
Committee wherein. he makes this
proposition which is the essential part
of the contract. namely: Il will
t-,r,, ,,l t~lro
who will be perfectly competent for
f2.'5 per day. as many first class men
as you can work to advantage for $50
p"r day, and men for plain. ordinary
coarse work for SEE per day, and what
time will be necessary for me to spend
personaly. together with team would
he 80 cents per hour" This offer was
accepted without any notifications OF
change, whatever.
Held. that this contract does not
state. nor can it be reasonably be i'm
PIED from its terms. that Nelson was
"mploved to do a job OF work" He and
MS m"r. in express terms, were hireo
ny the day. No time was specified II
which he should complete the work
No Specifications as to what work OF
how it should be done The defendants
;" far rs the contract itself shows MOI
only had the right hut must necessarily
have controlled and directed not only
Nelson's men, but Nelson himself, witt
respect To everything that was to bt
done upon the church. for the contract
does not refer to any plan, specified
lions. architect. or any person. even
to whom Nelson should go for instruc.
TONS All the contractor could have
done under this bare contract, withou
any other information or directions
when he and his men arrived at th'
church for duty. would have been t.
remain idle and wait. until some per
son vested with proper authority, di.
rccted them what to do.
Held. that the ruling was correc
upon the ground that Nelson was no
an independent contractor and that thu
DUTY "f providing proper safeguard
rested directly upon the defendants.
The plaintiff recovered a verdic
NSoc Upon the motion to set aside tn
verdict. Held. that the plaintiff shout;
remit the amount of the verdict abov'
S.5O