Appeal from Trial Term, Westchester County.
Action by John F. Burke against the City & County Contract Company, impleaded, etc. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, it appeals. Affirmed.
Defendant, assignee of a contract for construction of a railroad, also assumed a contract by which one R. agreed to employ and work on the grading, at such points and in such numbers as should be designated by the chief engineer, certain laborers, quarrymen, etc., and to supply them with necessary tools, etc., agreeing that the rate of pay should be the lowest at which they could be obtained, and that it should in no case exceed, without the engineer's consent, certain specified rates. R. further agreed to personally superintend the work and to give every facility to the company's timekeeper to check the pay rolls. The railroad agreed to refund R. the amount of wages paid and of material used as authorized by the engineer, together with 10 per cent. additional as compensation for the services of R. and for tools used by him. Held, that R. was not an independent contractor, so as to relieve defendant from liability to an injured employé.
George S. Graham (Ralph Polk-Buell, on the brief), for appellant.
Frederick W. Sparks (Roy C. Gasser, on the brief), for respondent.
Argued before WOODWARD, JENKS, GAYNOR, BURR, and MILLER, JJ.
[117 N.Y.S. 401] WOODWARD, J.
The plaintiff was concededly injured, his right arm being rendered useless in the performance of manual labor, by being struck by a piece of rock, blasted out in the course of work in preparing the roadbed for the New York, Westchester & Boston Railway Company; the defendant company having had charge of the said blasting work. While the defendant upon this appeal insists that the evidence does not disclose negligence on the part of the defendant, or evidence of lack of contributory negligence on the part of the plaintiff, the record shows that there was evidence which the jury might find to support the plaintiff's cause of action, and we are of the opinion that these questions were properly left to the jury for determination.
The New York, Westchester & Boston Railway Company entered into a contract with one Smith for the construction and equipment of its road from 177th street, in the borough of the Bronx, to Portchester, in Westchester county, for which Smith was to receive stock and bonds of the railroad. Smith assigned this contract to the defendant, and the latter assumed a contract which the engineer of the railway company had made with one Rivinac, but which is conceded to have been, in fact, made with Rivinac and Crawford. The construction of this contract presents one of the principal questions raised on this appeal; for, if Rivinac and Crawford were independent contractors, as this term is understood in the law of negligence, then the defendant is not liable to the plaintiff, while, if they were merely agents or servants of the defendant, then under the findings of the jury the defendant must respond in damages. The contract has been construed by the court below as involving the defendant in liability, and we are to determine if this ruling is correct. The contract provides, aside from the formal parts, that:
" The said R. F. Rivinac agrees to employ and work on the grading of the roadbed of the said railroad, at such points and in such numbers as may be designated by the chief engineer of the said railroad, certain foremen, laborers, quarrymen, teams, wagons, carts, etc., and supply them with the necessary tools, such as picks, shovels, axes, drills, hammers, etc., and that the rate of pay for the above shall be the lowest rate at which they can be obtained, and shall in no case exceed, without the special consent of the chief engineer of the railroad, the following rates: [Here follows a schedule of prices not necessary to be considered.] The said R. F. Rivinac further agrees to give his personal attention to superintending the work, and see that each of the employes gives an honest day's work to the railway company, and to give every facility to the timekeeper of the railway to take account of the force and check the pay rolls."
What is it that Rivinac agrees to do? He does not undertake to construct any roadbed for the railway company. He is under no obligation to construct a rod of roadway. His contract is to " employ and work on the grading of the roadbed, *** at such points and in such numbers as may be designated, *** certain foremen, laborers, quarrymen, teams, wagons, carts, etc., and supply them with the necessary tools," and he agrees that in no event, without special authorization, shall the pay for the above exceed certain fixed figures. In addition to this, he agrees, not that he will do any work of constructing [117 N.Y.S. 402] a roadbed, but that he will " give his personal attention to superintending the work and see that each of the employes gives an honest day's work to the railway company." He is not contracting for the construction of the roadbed, but for the employment of such numbers of laborers, teams, etc., as the chief engineer shall designate, and to personally see to it that the laborers, teams, etc., give the railway company a fair day's work. Is there anything to this agreement on the part of Rivinac more than a personal employment to gather up a working crew and to furnish them with light tools, within certain limitations as to price? Has he anything to do with the work of constructing the roadbed, independent of the chief engineer?
But let us see what the railway company agrees to do on its part. The contract continues:
" For the faithful performance in the above by the contractor, the New York, Westchester & Boston Railway Company agrees to refund to the said R. F. Rivinac the amount paid in wages to the above-mentioned employes, and the amount paid by the said R. F. Rivinac for any material used in the grading of the said railway which may be authorized by the chief engineer, together with 10 per cent. additional to the amount of said pay rolls and bills as a compensation for the personal services of the said R. F. Rivinac and for the tools furnished by him."
That is, for the faithful performance of the agreement to " employ and work on the grading of the roadbed" such laborers and teams as the chief engineer shall designate the railway company undertakes to pay, not the agreed maximum figure, but such amount as Rivinac shall have paid in wages to the above-mentioned employes, and the amount paid for materials used in the grading which may be authorized by the chief engineer, together with 10 per cent. upon the amounts so expended, as personal compensation for services and use of tools. Not a man or a team is to be employed, except such as shall be designated by the chief engineer; not a dollar in wages or for materials is to be refunded or paid to Rivinac, except such as may be authorized to be made use of by the chief engineer; and yet we are asked to hold that this simple contract for organizing and superintending a working force, under the direction of the railway company's chief engineer, constitutes Rivinac and his associate independent contractors in the construction of this roadbed, which relieves the defendant, as successor to the railway company under the contract, from liability to the plaintiff as a servant of the defendant.
We cannot so hold. It is not the fair and reasonable construction of the agreement. Rivinac was simply contracting to bring together a working force to be used under the direction of the railway company, through its chief engineer, relying for his compensation upon a percentage of the wages, etc., to be paid to these workmen, and his agreement to " start the work promptly when notified by the chief engineer" was merely an agreement to begin the work of organizing this force upon demand, and this makes clear the further provision that " the agreement may be terminated at any time on 10 days' written notice." The fact that Rivinac is termed a contractor in the agreement [117 N.Y.S. 403] does not extend the contract to cover matters clearly outside of its scope. It is quite common for men to make these percentage contracts, particularly since the modern influx of foreign laborers, who require a superintendent speaking their language, and they are generally referred to as contractors, without any one supposing that they are independent contractors upon the work which is in progress. Rivinac was probably an independent contractor under the definition laid down in Sullivan v. Dunham, 35 A.D. 342, 54 N.Y.Supp. 962, and 161 N.Y. 290, 55 N.E. 923,47 L.R.A. 715,76 Am.St.Rep. 274, in so far as the bringing together of a working crew was concerned; but he had no relation whatever to the work of constructing the roadbed. That ...