from responsibility; and one who creates a nuisance would be forbidden by public pol icy to shield himself, the real author of the wrong, from responsibility by casting it upon another. There is yet another class of cases where there is an exception to the exemption, and that is where the thing contracted to be done is necessarily attended with danger, however skilfully and carefully performed; said by Judge Dillon to be "intrinsically dangerous." There the employer cannot escape liability for an injury resulting from the doing of the work, although the act performed might be lawful. 2 Dill. Mun. Corp. § 1029. And there is still another class of cases to be excepted from the exemption, and that is where the contract requires an act to be performed on the premises which will probably be injurious to third persons if reasonable care is omitted in the course of its performance. The liability of the employer in such a case rests upon the view that he cannot be the author of plans and actions dangerous to the property of others without exercising due care to anticipate and prevent inju rious consequences. The case before us, it seems to us, falls under this exception to the general rule.

may employ to labor under him, such per-create a nuisance. A statutory duty cannot sons will be the servants of the contractor, be delegated so as to exempt the one who and not the servants of the employer, and has taken upon himself the duty imposed the employer will not be liable for damages arising from injuries caused by negligence of the contractor or his workmen, for the reason that the relation of master and servant does not exist between the employer and the contractor's servant. In the domain of the law of negligence the general rule is that, where an injury has been sustained by one through the negligence of another, the party injured must seek his remedy against that one whose actual negligence caused the injury, and against that one only, he being alone liable. There are exceptions to this general rule; as, for instance, where the relation of master and servant exists. In that case the negligence of the servant is to be imputed to the master in cases where the servant, in the performance of the act which causes the injury, is acting within the line of his duty, the scope of his em ployment. The reasoning upon which this exception rests is perfectly clear, and it is because the servant is acting for the master and by his direction, and the master, having selected and being in control of his servant, makes him his representative in the business in which he is employed. But in the complications of business and social affairs it is often necessary that some who follow special and independent vocations should be intrust- This last class of cases probably ought to ed by others, owners of property, with the be regarded as rather an extension of the alteration or improvement of that property, one where the act to be done is "intrinsicaland such persons are employed in many ly dangerous" than a separate class. In the ways under varying conditions; not as serv- case of Bower v. Peate (1875-76) L. R. 1 ants to follow the method and plans direct- Q. B. Div. 321, the facts were almost iden. ed and ordered by the employer, but as in- tical with those in the present case. There dependent contractors to do work which the contention of the defendant was that the they are specially fitted to do according to removal of the soil, to the support of which their own ideas and upon their own respon- the adjoining owner was entitled, was not sibility. In such a case the duty which wrongful in itself, and that it only became the contractor owes arises out of the con- so when followed by injury to the neighbor; tract, and not under the relation of master and that, therefore, if such injurious conseand servant or principal and agent, and the quences could have been averted by efficient maxiin, Qui facit per alium facit per se, does means, artificial, for the natural support not apply; and neither public policy nor the previously afforded by the soil, the removal relation between the employer and the inde- of the soil was not wrongful; that the dependent contractor demands or requires that fendant engaged the contractor to execute the negligence of either one should subject the work and to take the necessary precauthe other to liability to third persons. And tion to protect the plaintiff's premises, and it seems well established in principle that therefore, if the work had been done accordno liability exists in favor of third persons ing to the contract, it would have been lawagainst the innocent party in such cases. ful, and would have been attended with no Any person who may have been injured has injurious consequences; that the injuries his remedy against the real one who has arose from the negligence of the contractor done the wrong. There are, of course, excep- alone, and the defendant was therefore entions to this rule of exemption, well settled titled to the benefit of the general rule; and understood; such as in a case where that when a person employs a contractor a statute imposes a duty, or where the con- to do work lawful in itself, and involving no tract between the employer and the contract-injurious consequences to others, and damor is unlawful, or provides for the execu-age arises to another from the negligence of tion of an act which, when completed, will the contractor or his servants, the contract

or, and not his employer, is liable. The for injury happening to the house of the ap court there said: "The answer to the de- pellee from the excavation of his lots if fendant's contention may, however, as it ap- it might reasonably have been anticipated pears to us, be placed on a broader ground, that such injury would probably occur as a namely, that a man who orders a work to be consequence of an excavation made in the executed from which, in the natural course location and to the depth appearing from of things, injurious consequences to his the evidence in this case. The question as neighbor must be expected to arise unless to whether such injury might reasonably means are adopted by which such conse- have been anticipated as a probable consequences may be prevented, is bound to see quence of the excavation was a question of to the doing of that which is necessary to fact for the jury, which would have been prevent the mischief, and cannot relieve taken away from them if the appellant's himself of his responsibility by employing fourth prayer had been granted." someone else-whether it be the contractor The defendant asked his honor to charge employed to do the work from which the the jury, among other things, the following: danger arises, or some independent person—“If the jury shall find that the injury to the to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed, from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted." In the case of Southern Ohio R. Co. v. Morey, 47 Ohio St. 207, 7 L. R. A. 701, 24 N. E. 269, the court said: "One who causes work to be done is not liable ordinarily for injuries that result from carelessness in its performance by the employees of an independent contractor to whom he has left the work without reserving to himself any control over the execution of it. But this principle has no application where a resulting injury, instead of being collateral, and flowing from the negligent act of the employee alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for if reasonable care is omitted in the course of its performance. In such case a person causing the work to be done will be liable, though the negligence is that of an employee of an independent contractor." In the case of City & Suburban R. Co. v. Moores, 80 Md. 352, 45 Am. St. Rep. 345, 30 Atl. 644, the court said: "Even if the relation of principal and agent or master and servant do not, strictly speaking, exist, yet the person for whom the work is done may still be liable, if the injury is such as might have been anticipated by him as a probable consequence of the work let out to the contractor, or if it be of such character as must result in creating a nuisance, or if he owes a duty to third persons or the public in the execution of the work." In Bonaparte v. Wiseman, 89 Md. 12, 44 L. R. A. 482, 42 Atl. 918, the facts were like those in the case before us, and the court there cited with approval the two cases last above mentioned, and added: "Under these authorities the appellant would have been liable

plaintiff's building was caused by excavating, which was done by C. H. Norton, an independent contractor, and if the jury shall further find that the work which he contracted to do was not necessarily or probably dangerous, and that he was skilful and careful, the defendant cannot be held liable for such injury, and the jury will answer the issue 'No.'" If the requested instruction had left out the statement of the fact that Norton was an independent contractor, the instruction would have been proper. Bonaparte v. Wiseman, 89 Md. 12, 44 L. R. A. 482, 42 Atl. 918. But, containing that statement of a fact, his honor was correct in refusing to give it. As we have said before in this opinion, there was evidence tending to show that the defendant himself did the excavating. The matter we have been discussing and have decided is not free from difficulty, and the decisions of the courts in reference to the same have not been uniform. The strong opinion of the court of appeals of New York in the case of Engel v. Eureka Club, 137 N. Y. 100, 33 Am. St. Rep. 692, 32 N. E. 1052, delivered by Chief Justice Andrews, is not in line with this decision or those of the courts from which we have quoted. In that case, we understand it, it is held that the employer is liable in no case except where the thing to be done is inherently, intrinsically, and necessarily dangerous; and that in all cases where the injury arising from the negligence of the contractor is in the manner of doing it, and not in the thing itself contracted to be done, the contractor alone is liable. After a careful investigation of the matter, we do not feel inclined to follow that view.

as

On another question presented by the appeal—that is, whether or not the plaintiữ was entitled to notice from the defendant of his intention to dig below the foundation of her wall-the opinion delivered in this case on that point, as reported in ante, 493, is referred to and approved. In addition to what is there said on that question, it

1.

B. F. PENNY, Appt.,

Those in charge of a railroad train are bound to warn passengers

about

to alight from it of danger of possible injury in case an altercation has taken place between the railroad employees and another passenger which has resulted in an exhibition of, and apparent intention to use, deadly weapons after the latter passenger has left the train.

2. A complaint in an action against a

might be well to notice another exception of
the defendant in reference to the same mat-
ter. His honor, in his instructions to the ATLANTIC
jury, among other things, said: "The de-
fendant contends that this work was done
by an independent contractor; that he was
a competent and skilful man; and that,
therefore, if the work he contracted to do
was not necessarily or probably dangerous,
the defendant cannot be held liable for such
injury. The court charges you that the
evidence is that Norton was a competent
and skilful contractor; but the court also
charges you that the employment of an in-
dependent contractor, who is competent and
skilful, to make an excavation upon a lot
in near proximity to a neighbor's house in
a populous city, and in a public thorough-
fare, as on Main street in this instance,
and to a depth of several feet below the lev-
el of the foundation of that house, does
not relieve the proprietor from the obliga-
tion, either to see that the contractor in
doing the work protects his neighbor's wall
by the exercise of due care, or to give the
neighbor timely notice of the nature and ex-
tent of the intended excavation, that he may
make due precaution for the protection of
his own wall." The exception to that in-
struction cannot be sustained. It is correct
in principle, and is well supported by au-
thority. Bonaparte v. Wiseman, 89 Md. 12,
44 L. R. A. 482, 42 Atl. 918. "Thus the au-
thorities are agreed that one who proposes

to excavate or to make other alterations

or improvements upon his own land which may endanger the land or building of his neighbor is bound to give the latter reason able notice of what he proposes to do to enable him to take the necessary measures for the preservation of his own property." Thompson, Neg. § 1109, and the cases there cited. There was no evidence tending to show that the plaintiff in this case ever received any notice from the defendant or the contractor that it was the purpose of the defendant to excavate below the foundation of the plaintiff's wall, or that she had any knowledge of such intention on his part.

Exceptions in this case were filed to many portions of the evidence, to the giving of each one of the eleven instructions asked by the plaintiff, to nearly every sentence of his honor's charge in chief, and to the refusal of his honor to give thirty-one of the thirtyfive special prayers for instruction asked by the defendant. The examination of this record has consumed a good deal of our time unnecessarily, but after its conclusion we think there was no reversible error. Petition dismissed.

Douglas, J., concurs in result.

A

railroad company for failure to warn a passenger about to alight from the train of danger of injury by deadly weapons in the hands of railroad employees, and a passenger who has just left the train after an altercation with such employees, is not insufficient because it names the wrong person as conductor, where the evidence shows negligence on the part of the railroad company.

(October 27, 1903.)

PPEAL by plaintiff from a judgment of the Superior Court for New Hanover County in defendant's favor in an action injuries alleged to have resulted from debrought to recover damages for personal fendant's negligence. Reversed.

The facts are stated in the opinion.
Bryan, for appellant:
Messrs. Bellamy & Bellamy and E. K.

When the conductor or other servant of

the defendants train knew, or had reasonable grounds to apprehend, that the safety of a passenger in said train was endangered by any threatened force from without or within the train, and failed to use every available means to avert the threatened wrong, the defendant company is liable for any injury that resulted from any assault that ensued.

Britton v. Atlanta & C. Air-Line R. Co. 38 N. C. 536, 43 Am. Rep. 749; Daniel v. Petersburg R. Co. 117 N. C. 592, 23 S. E. 327; Tall v. Baltimore Steam Packet Co. 90 Md. 248, 47 L. R. A. 120, 44 Atl. 1007; New Orleans, St. L. & C. R. Co. v. Burke, 53 Miss. 200, 24 Am. Rep. 689.

It was the duty of the conductor and servants of the defendant to protect the plaintiff, and to see that he was not injured by his fellow passengers or anyone else while on the cars, and until he had safely landed at his destination and had left the premsies of the defendant.

NOTE. As to duty of carrier to protect passenger from violence by third persons, see note to Fewings v. Mendenhall, 55 L. R. A. 713, 60 L. R. A. 601; also Savannah, F. & W. R. Co. v. Boyle, 59 L. R. A. 104, and Brunswick & W. R. Co. v. Ponder, 60 L. R. A. 713.

Hansley v. Jamesville & W. R. Co. 115 N. | A. R. Co. 171 Mass. 536, 41 L. R. A. 794, C. 602, 32 L. R. A. 543, 44 Am. St. Rep. 474, 51 N. E. 1. 20 S. E. 528; Daniel v. Petersburg R. Co. 117 N. C. 592, 23 S. F. 327; 5 Am. & Eng. Enc. Law, 2d ed. p. 553; 2 Wood, Railway Law, 1176, § 313, p. 1179; Seawell v. Carolina C. R. Co. 133 N. C. 515, 45 S. E. 850. Penny had a right to assume that it was safe for him to get off as usual, and was not called upon to look for danger, while it was the duty of the conductor and other officers of the train to ascertain that it was safe for him to leave the train before they invitIed him to disembark.

platform of the first-class coach; that Van, be held responsible for his own or his Amringe and Carmon saw, or could have servant's neglect in this particular, when, seen, what was going on; that just at that by the exercise of proper care, the acts of time the plaintiff, intending to get off, came out of the second-class car, walked by La Motte, and across to the platform of the first-class car, and then down the steps between Van Amringe and Carmon, and upon reaching the bottom step was shot and badly hurt by Calloway, who had fired at La Motte. Van Amringe testified that, as Calloway retreated, La Motte leveled the pistol at Calloway, and snapped it two or three times before Calloway got his pistol out and opened fire; that he saw Calloway with the pistol, and that Carmon could have seen it if he had looked. Van Amringe further testified that neither he nor Carmon notified or warned the plaintiff of his danger, and that the reason he did not was that he did not think; "a person can't think of everything on an occasion like that." The plaintiff testified that he was not noticing anything as he was getting off, and did not know that he was in any danger.

Upon an intimation by his honor that the plaintiff could not recover on the evidence, he submitted to a nonsuit and appealed. The evidence, then, for the present discussion, is to be taken as true, and in the strongest light for the plaintiff. That being so, it is evident that it was the purpose of La Motte to kill the man Calloway, whom he thought to be helpless and unarmed; that Van Amringe knew the purpose of La Motte, and furnished him with the instrument of death; and Van Amringe said that Carmon, from where he was standing, could see the negro Calloway. "He could have seen him, for we all saw what was going on, and I supposed he did. I did not say he did see him."

violence might have been foreseen and prevented; and, while not required to furnish a police force sufficient to overcome all force when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passenger against assaults from every quarter which might reasonably be expected to occur under the circumstances of the case and the condition of the parties." This was not a direct assault by Calloway upon the plaintiff, who was a passenger on the defendant's train when he was shot by Calloway, but we think that in law the carrier's duty would be as clear to warn and give notice to an alighting passenger who was in danger of being injured by violence at the hands of outside parties as it would be to protect them against assaults at the hands of others. It seems to us that the same rule would apply in both cases. The defendant was charged with the plaintiff's safe exit under the rule laid down. The imminence and suddenness of the danger, as well as the strength and numbers of those offering violence to passengers, would be matters to be considered by the jury in connection with the carrier's duty. In this case, however, the evidence discloses culpability on the part of the defendant in that Van Amringe, the baggage master, without any excuse or matter of extenuation, brought about the act of violence by which the plaintiff was injured; and, according to his evidence, the conductor, Carmon, knew, or might have known, what was going on.

In the complaint it was alleged that La Motte was the conductor of the train, and, through his negligence in failing to notify the plaintiff of his danger, the plaintiff was injured, while the evidence shows that Carmon was the conductor. That is immaterial, for the evidence discloses a case of negligence on the part of the defendant, and it makes no difference that Carmon was the conductor instead of La Motte, as was alleged in the complaint. And, besides, the evidence was not objected to by the defendant. Robeson v. Hodges, 105 N. C. 49, 11 S. E. 263. Error.

There is but one question in the case: Did the defendant owe the duty to the plaintiff to warn him as to the danger of the situation? If Calloway had intended to make the assault directly upon the plaintiff, the duty of the defendant would have been to have protected him to the extent of its ability, as is so clearly laid down in Britton v. Atlanta & C. Air-Line R. Co. 88 N. C. 536, 43 Am. Rep. 749. Up to the time that case was decided, it seems that there was no express decision of this court on the duty of a common carrier on the subject of the protection of passengers against assaults of their fellow passengers or strangers; but the court there said: "According to the uniform tendency of these adjudications [decisions of other courts], which we admit as authorities, the carrier 1. owes to the passenger the duty of protecting him from the violence and assaults of his fellow passengers or intruders, and will exemption of attorney from arrest while at

H. T. GREENLEAF, Appt.,

v.

PEOPLE'S BANK OF BUFFALO et al.

(133 N. C. 292.)

A sale of land under judicial decree is not such a judicial proceeding as will exNOTE. For another case in this series as to