When work is per se dangerous and the employer does not stipulate that the con tractor shall use proper precautions to avoid injury to others, the employer is liable; Matheny v. Wolffs, 2 Duv. (Ky.) 137; Sulz bacher v. Dickie, 6 Daly (N. Y.) 469 ; or when the work contracted for becomes or occasions a public nuisance, unless it be due solely to the negligence of the contractor; Wood v. School Dist., 44 Ia. 27 ; Wabash, St. L & P. Ry. Co. v. Farver, 111 Ind. 195, 12 N. E. 296, 60 Am. Rep. 696; Kepperly v. Rams den, 83 Ill. 354 ; Edmundson v. R. Co., 111 Pa. 316, 2 Atl. 404; Conners v. Hennessey, 112 Mass. 96; or when the contractor is in competent ; Cuff v. R. Co., 35 N. J. L. 17, 10 Am. Rep. 205; and that the employer was ignorant of such incompetency will not ex cuse him ; id.; but see Brannock v. Elmore, 114 Mo. 55, 21 S. W. 451. But it was held that when the defendants employed a car penter and bridge builder of experience to build a bridge, it was not enough for the plaintiff to show that the work was unskil fully done; it must appear that the defend ants were guilty of negligence in selecting him ; that they either knew, or with proper diligence ought to have known, Ilis incompe tency; Mansfield Coal & Coke Co. v. Mc Enery, 91 Pa. 185, 191, 36 Am. Rep. 662.
The general rule is that the employer is only liable in three cases : 1. Where the act of the contractor is one which if done by the employer would be done at his peril. 2. Where the contractor is employed to execute certain work which the employer is under a statutory duty to perform. 3. Where the work which the contractor is employed to da is unlawful or a public nuisance; Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052, 33 Am. St. Rep. 692. For a general rule of non-liability for acts of independent con tractor, see King v. R. Co., 66 N. Y. 181, 23 Am. Rep. 37. In other cases the employer is not liable; Conners v. Hennessey, 112 Mass. 96.
In Covington & C. Bridge Co. v. Stein brock, 61 Ohio St. 215, 55 N. E. 618, 76 Am. St. Rep. 375, through negligence of an inde pendent contractor employed to tear down a building partly destroyed by fire, the wall fell, damaging plaintiff's building, and the defendant was held liable though he used due care in selecting his contractor. He was held negligent on the broad principle that one cannot escape liability for an injury that might have been anticipated as a probable consequence if reasonable care were omitted. This case is criticised in 14 H. L. R. 62, as partially abrogating the independent con tractor rule in Ohio. Some cases establish a rule holding the employer in a contract for labor on a highway as an insurer, owing a duty to the public; Hill v. Tottenham, 106 L. T. R. 127 ; Penny v. Wimbledon Council [1899] 2 Q. B. 72; Halliday v. Telephone Co. [1899] 2 Q. B. 392 ; The Snark [1899] P. D.
74. This line of cases is approved by 14 Harv. L. R. 63, as an exception to the gen eral rule, but the writer thinks that the weight of authority in this country is in fa vor of the independent contractor rule and against the Ohio case.
After acceptance of the contract work, the employer will be liable for an injury caused by a defect in it ; Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224; Bast v. Leonard, 15 Minn. 304 (Gil. 235) ; Chartiers Val. Gas Co. v. Lynch, 118 Pa. 362, 12 AtI 435; Vogel v. New York, 92 N. Y. 10, 44 Am Rep. 349 ; Fanjoy v. Seales, 29 Cal. 243 ; Cunningham v. R. Co., 51 Tex. 503, 32 Am. Rep. 632; Kansas Cent. Ry. Co. v. Fitz simmons, 18 Kan. 34; and, if ratified by him, for the tortious acts of the contractor; Coomes v. Houghton, 102 Mass. 211; Parker v. R. Co., 81 Ga. 387, 8 S. E. 871.
As to the liability of a municipal corpora tion, it has been held that such a corpora tion cannot rid itself of responsibility for the acts of an independent contractor ; King v. R. Co., 66 N. Y. 181, 23 Am. Rep. 37; as he is acting under the authority of the district or city council, and without such authority, he would be a trespasser on the streets ; 74 L. T. Rep. 69; and notwithstanding the na ture of the work to be performed, it is the duty of the municipality to see that the streets are in a safe condition for travel ; Kemper v. City of Louisville, 14 Bush (KY.) 87 ; Mayot etc., of City of Savannah v. Waldner, 49 Ga. 316; Mayor, etc., of Balti more v. O'Donnell, 53 Md. 110, 36 Am. Rep. 395 ; Grant v. City of Brooklyn, 41 Barb. (N. Y.) 381; Schweickhardt v. City of St. Louis, 2 Mo. App. 571; Mayor, etc., of Mem phis v. Lasser, 9 Humph. (Tenn.) 760; contra, Painter v. Mayor, etc., 46 Pa. 213; or, as it is held in England, so to construct its sewers as not to injure the gas mains or other underground conveniences, and the municipality was held liable even when there was an independent contractor for the in jhry caused by an explosion in a private house because of an escape of gas from a main broken by the negligence of the con tractor ; [1896] 1 Q. B. 335.
And this rule is to be applied even though the contractor has stipulated that he will be responsible for all damages that may be caused in the execution of the work ; In habitants of Veazie v. R. Co., 49 Me. 119 ; Smith v. City of St. Joseph, 42 Mo. App. 392; Pettengill v. City of Yonkers, 116 N. Y. 558, 22 N. E. 1095, 15 Am. St. Rep. 442; Mc Allister v. City of Albany, 18 Or. 426, 23 Pac. 845 ; contra, Osborn v. Ferry Co., 53 Barb. (N. Y.) 629. It has been held that where there is a statutory requirement that the contract be given to the lowest bidder, the municipality was not liable; James v. City of San Francisco, 6 Cal. 528, 65 Am. Dec. 526.
See MASTER AND SERVANT ; MUNICIPAL COR PORATION ; NEOLIGENCE.