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The Wabash, St. Louis and Pacific Railway Company v. Farver.

ing the progress of the work. If it became necessary that he should run the engine at night he was to receive extra compensation.

In pursuance of this agreement the latter placed his engine in a vacant lot, some six feet or more outside the line of a public highway which intersected the railway company's line at or near the point where the reservoir was being constructed. So far as appears, he selected the location of the engine, and controlled its operation, as the work he engaged to do required. When the accumulated water was pumped down to a certain level, or when persons were passing on the highway, the engine was stopped, and when the water rose to a certain height the pumping was resumed. While Williams was thus engaged in carrying out his agreement, the plaintiff's horse, in passing along the adjacent highway, took fright at the engine, and became unmanageable. The plaintiff was thrown from his carriage and injured. The question is, whether, under the circumstances, the railway company is liable for the negligence of Williams, assuming that he was negligent in operating his engine so near the public highway.

The rule which controls in cases of this class has become well established, and has more than once been recognized and applied by this court. Ryan v. Ourran, 64 Ind. 345 (31 Am. R. 123); Sessengvi v. Posey, 67 Ind. 408 (33 Am. R. 98); City of Logansport v. Dick, 70 Ind. 65 (36 Am. R. 166).

Under this rule, where work which does not necessarily create a nuisance, but is in itself harmless and lawful, when carefully conducted, is let by an employer, who merely prescribes the end, to another who undertakes to accomplish the end prescribed, by means which he is to employ at his discretion, the latter is, in respect to the means employed, the master. If, during the progress of the work, a third person sustains injury by the negligent use of the means employed and controlled by the contractor, the employer is not anThe Wabash, St. Louis and Pacific Railway Company v. Farver.

swerable. The inquiry in such a case is, did the relation of master and servant subsist between the person for whom the work was done, and the person whose negligence occasioned the injury? If, in rendering the service, the person whose negligence caused the injury was in the course of accomplishing a given end for his employer, by means and methods over which the latter had no control, but which were subject to the exclusive control of the person employed, then such person was exercising an independent employment, and the employer is not liable. If, on the other hand, the end to be accomplished was unlawful, or if in and of itself it necessarily resulted in the creation of a nuisance, or in making a place dangerous which the employer was under a peculiar obligation to keep secure, then, regardless of the relation which existed between the employer and the person whose negligent conduct caused the injury, the employer is liable for a breach of duty. Cuff v. Newark, etc., R. R. Co., 35 N. J. Law, 17 (10 Am. R. 205; 9 A. L. R., N. S., 541); Smith v. Simmo7i8, 103 Pa. St. 32 (49 Am. R. 113); Harrison v. Collins, 86 Pa. St. 153 (27 Am. R. 699); School District, etc., v. Fuess, 98 Pa. St. 600 (42 Am. R. 627); Hunt v. Pennsylvania R. R. Co., 51 Pa. St. 475; Callanan v. Burlington, etc., R. R. Co., 23 Iowa, 562; Eaton v. European, etc., R. W. Co., 59 Maine, 520 (8 Am. R. 430); Be Forrest v. Wright, 2 Mich. 368; Moore v. Sanborne, 2 Mich. 519; Corbin v. American Mills, 27 Conn. 274; Bailey v. Troy, etc., R. R. Co., 57 Vt. 252 (52 Am. R. 129); Wood Master and Servant, section 313, et passim; Cooley Torts, 548. The application of the foregoing principles to the facts in hand leads to the conclusion that the appellant was not liable.

The work contracted to be done was not in itself unlawful, nor was it necessarily a nuisance to operate a portable steam-engine in a careful manner in close proximity to a public highway. Injury could only result from its negligent use. It would not do to say that the operation of a The Wabash, St. Louis and Pacific Railway Company v. Farver.

portable engine, near a public highway, necessarily resulted in creating a nuisance, when it is according to daily experience, during certain seasons of the year, to see steam threshing-machines in operation on every hand, and often necessarily close to public highways. Road engines propelled by steam, and portable engines operated by steam, have become familiar in every agricultural community. To declare that their use near, or their passage over, a public highway constituted a nuisance, would be practically to prohibit their use in the manner in which they are customarily employed and moved from place to place. It must be supposed that horses of ordinary gentleness have become so familiar with these objects as to be safe, when under careful guidance. Piollet v. Simmers, 106 Pa. St. 95 (51 Am. R. 496); Gilbert v. Flint, etc., R. W. Co., 51 Mich. 488 (47 Am. R. 592); Macomber v. Nichols, 34 Mich. 212 (22 Am. R. 522).

Now as to the relation between the railway company and Williams, keeping in view the rule that where an employee is exercising an independent employment, and is not under the control and direction of the employer, the latter is not responsible for the negligence or misdoings of the former. King v. New York Central, etc., R. R. Co., 66 N. Y. 181 (23 Am. R. 37). It is nowhere denied but that Williams was employed to furnish and superintend the running of his engine, to the end that the water might be pumped out of the way, so as to admit of the prosecution of the work in which the railway company was engaged. In respect to the engine, and the manner of operating it, he was the sole master, and had the right to employ whomsoever he pleased to assist him. Neither the railway company nor any of its employees had the right to run the engine, or to interfere in the manner of its running, or to direct its owner how or when it should be run. The only right the company had in respect to the matter was to require Williams to accomplish the end of keeping the water out of the way of its workmen. In respect to his engine, and its control, and his liability for its negligent use, the latBevier et cd. v. Kahn.

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ter was as much an independent contractor when pumping water for the railway company as when sawing wood or threshing wheat for persons in the neighborhood. His relation to the railway company, while executing his contract for it, was precisely the same as to others, while executing work for them with his engine under contracts. It would be a startling proposition to affirm that every person who employs the owner of an engine and machinery to saw wood or thresh his crop would be liable to any person who might be hurt through the negligence of the operator or his assistants, although the employer had no control over the machinery and no immediate direction over those engaged in its operatiou.

The conclusion thus reached upon the facts renders it unnecessary that we should examine in detail all the various questions discussed in the briefs. The evidence does not sustain the finding. The court erred in overruling the motion for a new trial.

Judgment reversed, with costs.

Filed May 26, 1687.

No. 12,853.

Bevier Et Al. V. Kahn.

Notice.Summons.When not Necessary on Oross-Complaint..— It is not necessary to issue a summons on a cross-complaint as against the defendants to the original complaint, where the latter discloses the character of the claim of the cross-complainants, and fairly informs the defendants that such claim will be adjudicated, as it is their duty to take notice without further process of all the proceedings in the cause.

From the Steuben Circuit Court.

J. A. Woodhull and W. M. Brown, for appellants.

C. A. O. MeClellan and D. A. Garwood, for appellee.

Bevier et al v. Kahn.

Elliott, J.—The appellee claims title to the land in controversy under a sheriff's sale made upon a decree of foreclosure, and sought by this suit to have his title quieted.

In the complaint filed by the plaintiffs in the foreclosure suit the mortgage sought to be foreclosed was set forth, and it was averred that it was executed by the appellants to secure the payment of two promissory notes; that one of the notes was endorsed to the plaintiffs in that suit by the mortgagee; that the other note was endorsed to Crane, Duncan & Lydecker, and that they "claim thereby an interest in said described land adverse to plaintiffs."

Crane, Duncan & Lydecker filed a cross-complaint setting forth the note assigned to them and asking that the mortgage be foreclosed for their benefit, and that judgment be rendered in their favor. It does not appear that process was issued on the cross-complaint, nor that an appearance was entered by any of the parties except the plaintiffs, but it does appear that by agreement of the parties the cause was submitted to the court for trial, and that a decree was entered declaring the lien of Crane, Duncan & Lydecker to be the prior one and awarding them judgment.

The contention of the appellants is, that there was no service of process on the cross-complaint, nor any appearance, and that the decree in favor of the cross-complainants was void. This contention can not prevail. Our judgment is, that the complaint disclosed the character of the claim of the cross-complainants and fairly informed the appellants that the claim would be adjudicated, and that, for this reason, no process was necessary.

In Pattison v. Vaughan, 40 Ind. 253, the allegation as to the nature of the claim of one of the defendants was very similar to that contained in the complaint before us, and it was held that it was not necessary to issue a summons on the cross-complaint, the court saying: "We think that as to matters contained in the original complaint, if not in all cases, the defendants to the original complaint, when served

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