Railroad Company v. Hanning
ERROR to the Circuit Court for the District of Louisiana; the case being this:
The New Orleans, Mobile, and Chattanooga Railroad Company-the station-house grounds of whose road in New Orleans came down in one part of the city to the batture of the Mississippi-obtained conveyances of the batture property in front, the same being accurately described by maps annexed to them, and were desirous of building in front of their batture a wharf on the river, and also of repairing an old wharf there.
With a view of enabling them to do this, the General Assembly of Louisiana, by a joint resolution passed March 6th, 1869, gave the company—
'The right to inclose and occupy for its purposes and uses, and in such manner as the directors of the said company may determine, that portion of the levee, batture, and wharf, in the city of New Orleans, between and from [certain streets described] to the lower line of the batture, rights owned by said company.'
And the joint resolution provided that—
'No steamship or other vessel shall occupy or lie at said wharf, or receive or discharge cargo thereat, except by and with the consent of the said company.'
On the 21st of January, 1870, the General Assembly also passed on act,  relating to the company, whose second section was in these words: 'The said corporation, its officers, or employees, shall not in any case be liable for any debts contracted or liabilities incurred by any person or persons who shall have contracted, or who shall contract with it, to construct any portion of its road, buildings, or appurtenances, or its rolling stock, or to furnish any materials or labor to be used for such construction, or for its maintenance or operation.
'Nor shall said company, its officers, or employees, be liable for any injury to person or property, or loss of life, which shall be caused by any act or omission of any person or persons so contracting with it, or any of his or their employees or agents.'
In this state of things, on the 28th of November, 1870, the railroad company, through its division engineer, G. W. Bayley, made an agreement with one Michael Carvin, thus:
'Michael Carvin agrees to furnish the timber, planking, and iron work, and all the labor necessary for the rebuilding of the company's wharf in front of their depot grounds, . . . with such mooring-posts, cluster-piles for fenders every twenty feet, rows of piles on boundary lines, above and below, slips or inclines, as the company, through their engineer, may require, for the sum of $40 per square of one hundred square feet, it being understood that only the best quality of twelve-inch square yellow pine timber shall be used for piles, caps, stringers, fenders, and blocking, and the best of three-inch yellow pine planks for covering or flooring, such of the old piles as are sound and good to be sawed off and blocks placed thereon, but new caps, stringers, and planking to be used throughout. The old wharf to be made as good as new, and the new wharf in the best workmanlike manner; two hundred feet of wharf, from the lower line, to be completed in two weeks, and the whole within one month from this date.
'It is also understood and agreed that the said G. W. Bayley, division engineer of the company, shall supervise and direct the work hereby agreed to be done, and that the said work shall be done to his satisfaction.
'Payment to be made in currency, on the 10th of January, 1871, the company's regular pay-day, at the rate of $40 per square for completed wharf, as above specified, on the approval of the estimate or bill for same by said G. W. Bayley, division engineer.'During the progress of the work thus provided for, one Hanning, while walking, as he alleged, across the wharf and using all proper precautions, was precipitated down an embankment the distance of ten feet and received serious injury; the injury, as he further alleged, being wholly caused by the company's negligently removing the planks on the wharf and negligently laying the planking thereon, contrary to its obligations in the matter. He accordingly sued the company, alleging that the wharf was a 'public wharf.'
The place where the wharf was, it appeared, prior to the passage of the joint resolution of March 6th, 1869, authorizing the railroad company to inclose and occupy it for its own purposes and uses, had, like the banks of all rivers in Louisiana, from an early date, been open to the public for passing along.
The court below, refusing to give instructions requested by the plaintiff of an opposite kind, charged that if the jury should believe from the evidence that the wharf had always been free and open to the public, then that when the legislature gave to the company the right to occupy it, it was the duty of the company to take means to warn the public that the rights of the public had ceased, so that persons might avoid going upon it, and that as the company had neglected to take any precautions in this respect, they were liable for the damage.
It also charged that the company was answerable for the acts of its contractor, under the contract with Carvin.
The jury found $10,000 damages for the plaintiff; and judgment being entered accordingly, the present writ of error was taken.
The record sent here was a meagre one. It did not furnish any evidence of what sort of a wharf, as ex gr., whether public or private, this wharf was, further than as might be inferred from the joint resolution of March 6th, 1869, the conveyances of property adjoining it, and the contract with Carvin. Neither did it appear what brought the plaintiff on the wharf, whether lawful business, idleness, curiosity, or some bad purpose.
Messrs. J. A. and D. G. Campbell, for the plaintiff in error:
1. We admit that a servitude of public utility is reserved upon the banks of all of the navigable waters in Louisiana. But in this case this condition of public use ceased with the adoption of the joint resolution of the 6th of March, 1869, and the occupation of the wharf by the railroad company, under their title. This resolution of the legislature discharged the land of the reserved public servitude, and authorized the corporation, as riparian owners, to maintain a wharf in their front for their own uses and purposes, in such manner as the board of directors might determine. The act, therefore, of the defendant, Hanning, in coming upon this property without any business relations with, or invitation, or inducement from the corporation, was a trespass; for we know of no law, custom, or usage which requires a proprietor to maintain fences, sign-boards, inclosures, or sentinels about his property. Addison, in his work on Torts,  says:
'If a man's land is not surrounded with an actual inclosure, the law encircles it with an imaginary barrier, which to pass, is to break and enter his close.'
A wharfinger, no doubt, is bound to keep his wharf in a proper condition for intercourse which he invites; but 'a mere passive acquiescence by the owner or occupier, in a certain use of his land by others, involves no liability.'  The court in its instruction discarded from its consideration any duty on the part of the defendant to inquire into the title to the property, of its condition, or of his own responsibility to mark where he went. The facts visible to him were of themselves sufficient to put him upon his guard. He saw an inclosure of the levee, and a railway passing over a portion of it, and parties engaged in stripping the wharf of its timbers, and things in confusion about him. Common sense would have told him as readily as a signboard, that such places were dangerous and to be avoided.
2. By force of the contract with Carvin the wharf at the time of the accident was in his possession. The negligence, if any there was, was his, not that of the company; and the company is not responsible for any negligence by him or by those employed by him. The general principle is now settled, that a person, either natural or artificial, is not liable for the acts or negligence of another, unless the relation of master and servant, or principal and agent, exist between them; that when an injury is done to a person exercising an independent employment, the party employing him is not responsible to the person injured.  Nor will the reservation of the power to supervise or to inspect the work, throw the liability upon the employer. This is the doctrine laid down in the important English cases of Knight v. Fox,  and Steel v. Southeastern Railroad Company,  and affirmed in our own courts. 
3. The wharf and batture back of it are in front of the depot grounds of the corporation, and are at the termination of the eastern line of the ferry across the Mississippi River, as will appear from acts of the legislature of Louisiana,  which the court will judicially notice. The construction of the wharf was a stage in the construction of the road.
Now the statute of January 21st, 1870, expressly defined and limited the liability of the railroad company, and declared that the company should not be liable for any injury to persons which shall be caused by any act or omission of any person contracting with the company to construct any portion of its road, or to furnish any materials or labor to be used for such construction. This comprises exactly such a case as the present, supposing that the injury was caused by Carvin's neglect.
We conclude, that the corporation is not liable for an injury to the person of one who, having no business with them, or inducement or invitation to come upon their property, came upon it for an idle promenade, and coming upon it, found it in disorder and insecurity from the acts of a contractor engaged in repairing and reconstructing it, and without any agency on the part of the corporation, fell through the floor.
Mr. T. J. Durant, contra.
Mr. Justice HUNT delivered the opinion of the court.
^1 No. 31, Sessions Acts, p. 35.
^2 Chapter 6, § 1.
^3 Bolch v. Smith, 7 Hurlstone & Norman, 736; Sweeny v. Railroad Co., 10 Allen, 368.
^4 Hilliard v. Richardson, 3 Gray, 359; Scammon v. City of Chicago, 25 Illinois, 425; Pack v. Mayor of New York, 4 Selden, 222.
^5 1 English Law and Equity, 477.
^6 32 Id 366.
^7 Painter v. City of Pittsburg, 46 Pennsylvania State, 220.
^8 Acts of 1870, p. 57; Acts of 1868, p. 31.