This decision was followed in some of the earlier English and American cases, but the• weight of authority in both countries has overruled it, the question of its authority having been decisively settled in each coun try, in what have become leading cases ; 4 Exch. 244; Hilliard v. Richardson, 3 Gray (Mass.) 349, 63 Am. Dec. 743. But see 6 H. & N. 488, and Chicago v. Robbins, 2 Black (TJ. S.) 418, 17 L. Ed. 298, with the criticism of these cases in Bibb's Adm'r v. R. Co., 87 Va. 711, 14 S. E. 163.
A like rule governs the question of the liability of the employer and the contractor for the negligence and torts of the sub-con tractor or his servants ; 7 H. & N. 826; 11 C. B. 867; 2 C. P. Div. 369 ; Wray v. Evans, 80 Pa. 102; Slater v. Mersereau, 64 N. Y. 138. • If be undertakes to provide the material, he is liable for an injury caused by his failure to provide it ; Gilbert v. Beach, 5 Bosw. (N. Y.) 447 ; and generally, he is lia ble if the contract reserves to him such a power of supervision or control of the work as will destroy the free agency of the con tractor, whether the supervision be exercised by himself or by persons designated by him; Vogel v. City of New York, 92 N. Y. 10, 44 Am. Rep. 349 ; Hughes v. Ry. Co., 39 Ohio St. 466; Edmundson v. R. Co., 111 Pa. 316, 2 Atl. 404; Harper v. City of Milwaukee, 30 Wis. 365; City of Chicago v. Dermody, 61 Ill. 431; Camp v. Church Wardens of Church of St. Louis, 7 La. Ann. 321; City of Denver v. Rhodes, 9 Colo. 554, 13 Pac. 729; but not if the power of supervision reserved is not such as to interfere with the discretion of the contractor in the manner of executing the work, but is confined to seeing that the in tended result is produced ; Nevins v. City of Peoria, 41 Ill. 502, 89 Am. Dec. 392 ; Vin cennes Water Supply Co. v. White, 124 Ind. 376, 24 N. E. 747. The exact rule as to supervision is said to be that the employer, through its chief engineer, may reserve the right to criticise the work but not to control it; Bibb's Adm'r v. R. Co., 87 Va. 711, 14 S. E. 163.
The employer will be held liable if the injurious act complained of was contem plated by the contract; Whitney v. Clifford, 46 Wis. 138, 49 N. W. 835, 32 Am. Rep. 703; St. Louis & C. Ry. Co. v. Drennan, 26 Ill. App. 263 ; or if the contract work is neces sarily dangerous or harmful ; Mayor, etc., of Birmingham v. McCary, 84 Ala. 469, 4 South. 630 ; Circleville v. Neuding, 41 Ohio St. 465; Wilson v. City of Wheeling, 19 W. Va. 323, 42 Am. Rep. 780; Haniford v. Kansas City,
103 Mo. 172, 15 S. W. 753 ; 3 L. R. H. L. 330. Where a man orders work to be done, upon which injurious consequences must be ex pected to arise, he is bound to see to the do ing of that which is necessary to prevent the mischief and cannot relieve himself by em ploying some one else; 1 Q. B. Div. 321.
Where the employe of an independent con tractor was, under contract of a tenant, cleaning the windows of a building flush on the street, and having no safety appliances, though the work was inherently dangerous, and he fell to the street and injured a pass er-by, it was held that he must be regarded as the servant of the tenant and that the tenant was liable, regardless of the em ployment by an independent contractor; Doll & Sons v. Ribetti, 203 Fed. 593, 121 C. C. A. 621, following 1 Q. B. D. 321, supra. In such case the occupier of the building cannot dis charge himself by employing an independent contractor ; Poll. Torts 477. When a person is engaged in work, in the ordinary doing of which a nuisance occurs, he is liable for any injury to third persons for negligence, though the work may be done by a contrac tor; Water Co. v. Ware, 16 Wall. (U. S.) 566, 21 L. Ed. 485.
A general contractor, having control for the purpose of erecting buildings for the owner of a property, cannot relieve himself from liability for a dangerous situation, though created by the independent con tractor ; Wilson v. Hibbert, 194 Fed. 838, 114 C. C. A. 542.
The independent contractor rule was ap plied in Deyo. v. R. Co., 94 App. Div. 578, 88 N. Y. Supp. 487, where defendant owning a park engaged a company to exhibit fireworks. Defendant was held not liable to a spectator who was injured by a rocket negligently dis charged by a workman under control of the contractor company. One who invites others to come upon his premises must use due care to render them safe, and cannot avoid this duty under cover of an independent con tractor; Curtis v. Kiley, 153 Mass. 123, 26 N. E. 421. Where the work is of a danger ous nature, one is bound not only to due care in selecting a contractor, but also to see that due precautions are taken. The liability of the owner is based upon failure to keep his premises reasonably safe, and not to the negligence of the contractor ; Thompson v. R. Co., 170 Mass. 577, 49 N. E. 913, 40 L. R. A. 345, 64 Am. St. Rep. 323. Compare Se beck v. Plattdeutsche ‘Volkfest Verein, 64 N. J. L. 624, 46 Atl. 631, 50 L. R. A. 199, 81 Am. St. Rep. 512.