erected flush with the sidewalk, permitted the servant of an independent contractor to stand [263] on the window ledges to clean windows on the outside without providing scaffolding or other safety appliances, and the servant fell and injured the plaintiff, who was walking past the building, whether the tenant was negligent in not providing scaffolds or safety appliances was for the jury." The statement of claim in that case charged, "That in the city of Pittsburgh, it had been a custom to have the windows of such buildings cleaned by persons standing on the outside of the sash or sills of the windows, secured from falling by a stout belt worn about the waist, with a strap on each side thereof, fastened to a hook or other fixture set for the purpose in the side frames or casing of each window." It further averred "that the building occupied by the defendant was not and never had been provided with such hooks, or with any other fit or appropriate fixtures for the purpose stated," and that the defendant, long prior to the day of the accident, 'knew, or by the exercise of reasonable care should have known, that the windows of the building were not equipped with the customary hooks or other appropriate fixtures," etc., and that while the servant of the contractor was engaged in cleaning the window on the fourth floor of the building, he accidentally lost his balance and fell upon the plaintiff, who was walking upon the sidewalk below. The Court said that the facts alleged in the statement of claim were for the most part undisputed, "and that there was evidence tending to support all of the allegations of fact upon which were based the charge of negligence of the defendant." In that case, therefore, the negligence of the defendant alleged and shown by the evidence was his failure to furnish the appliances and safeguards usually provided by the owner or occupier of a building to prevent those engaged in washing the windows from falling.

The distinction between those cases and the case at bar is obvious. Here the evidence shows that the accident was due to the failure of the servants of Crooks, Zick & Co. to properly fasten or tie the guy lines. There is no evidence to [264] show that the defendant neglected to provide any safety appliance that was customarily supplied by the owner of the building, or that it was a common occurrence for painters to fall from a suspended stage or scaffold.

The appellant contends that the defendant owed an absolute duty to the public not to interfere "with their right to the safe and unimpeded use of the sidewalk." The duty that the owner of property on a highway owes to the public is not to create a nuisance on the highway, and to take proper precautions to prevent injuries that may be anticipated

as a probable consequence of work in which he, or his contractor, is engaged. But that duty did not make the defendant an insurer against injury to the public, or require him to provide against all possible injury, however remote, nor did it require the defendant to go on the top of its building to see that the guy lines used by the contractor were properly tied. In City, etc. R. Co. v. Moores, supra, the plaintiff was injured by reason of her horse becoming frightened at a steam engine which was being used by White, an independent contractor, in the execution of certain work on a turnpike. After referring to the rule stated in O'Donnell's Case, supra, and Water Co. v. Ware, 16 Wall. 566, 21 U. S. (L. ed.) 485, Judge Boyd said: "But the evidence shows that the injury was sustained by the negligent use of the engine in not stopping it and in blowing the whistle as she (the plaintiff) approached. It would be carrying the obligation of the Turnpike Company beyond that required or authorized by the authorities to hold that its duty to the public required it to see that the servants of White were not thus negligent, although the use of the steam engine was not a nuisance per se and could be operated so as not likely to do any injury to anyone using the road. It would be requiring too much of it to make it take such precautions against accidents when letting out lawful work to an independent contractor. It must be admitted that the work to be done was lawful and the company had the right to assume that there would be no such negligence as that [265] complained of, which was entirely collateral to and not a probable consequence of the work contracted for. To hold the company to such a strict liability would practically forbid it from having such work done by contractors as it would have to keep its own agents on engines to see that there was no negligence on the part of the contractors or their servants." This statement of Judge Boyd's was quoted at length and approved in the later case of Symons v. Road Directors, 105 Md. 254, 65 Atl. 1067.

It is also urged on behalf of the appellant that the question whether the injury might reasonably have been anticipated by the defendant as a probable consequence of the work contracted to be done was one of fact for the jury. That, of course, is the general rule (Bonaparte v. Wiseman, 89 Md. 12, 42 Atl. 918, 44 L.R.A. 482; Philadelphia, etc. R. Co. v. Mitchell, supra), but here we are considering the legal sufficiency of the plaintiff's evidence, the burden being upon her to show that the defendant was guilty of negligence. There was no evidence to show that the injury might have been anticipated as a probable consequence of the work in which the contractor was engaged. On the con

trary, as we have said, the work was done in the usual way, and all the evidence tends to show that there was no reason why the defendant should have anticipated any injury to persons using the sidewalk. The mere fact that the servant of the contractor fell and injured the plaintiff would not justify an inference that the injury was caused by the negligence of the defendant, especially as it was shown to have been due entirely to the negligence of the contractor's servant, which the defendant had no reason to anticipate. Joyce v. Flanigan, 111 Md. 481, 74 Atl. 818. The maxim res ipsa loquitur cannot aid the plaintiff in this case. The man who fell and injured her did not fall from the defendant's building, but from the stage or scaffold which was not under its management or control. The case most frequently referred to in this State as containing the true statement of the rule is the case of Scott v. London, etc. Docks Co. 3 H. & C. (Eng.) 596, where [266] it is said: "There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or its servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." Howser v. Cumberland, etc. R. Co. 80 Md. 146, 30 Atl. 906, 45 Am. St. Rep. 332, 27 L.R.A. 154; Decola v. Cowan, supra; Walter v. Baltimore Electric Co. 109 Md. 513, 71 Atl. 953, 22 L.R.A. (N.S.) 1178; Chesapeake Iron Works v. Hochschild, 119 Md. 303, 86 Atl. 345.

Albert C. Putts, the president of the defendant, was called as a witness for the plaintiff and was asked if the painting that was done on the defendant's building was not done by the defendant, and he answered, "Yes." He was then asked, "Your company was having the building painted?" to which he replied, "Yes, we gave the contract to have it painted." On cross-examination he was asked by counsel for the defendant to whom the appliances used in connection with the painting belonged. The plaintiff objected to the question, but the Court overruled the objection, and the witness answered that they belonged to Crooks, Zick & Company. After stating further that the defendant had nothing to do with the work, did not employ the men engaged in it, and had no control over them or the appliances and methods used in doing the work, the witness was asked on redirect examination by counsel for the plaintiff if the defendant took "any precaution to safeguard the travel on the sidewalk" or did anything "to protect the pedestrians walking along the street under the ladder," which questions were objected to by the defendant,

and the Court refused to permit the witness to answer them. These rulings formed the subject of the first three exceptions. The witness having stated in his examination-inchief that the painting "was done by" the defendant, and that the defendant "gave the contract to have it painted," the defendant had a right to have him explain and to interrogate him as to the extent of the defendant's connection [267] with the work. The questions asked in the second and third exceptions did not relate to any matter referred to in the cross-examination, and there was, therefore, no error in either of those rulings.

The fourth, fifth, sixth and tenth exceptions are to the refusal of the Court below to per mit the witnesses to say whether they had ever known paint buckets, brushes or ropes to fall from ladders or scaffolds used in painting buildings. We see no error in these rulings. The plaintiff was not injured by the falling of a paint bucket or brush, and even if proper care required the defendant to provide against injuries from such causes, it would not follow that it was its duty to anticipate injury from the falling of a man from the scaffold. Mr. Israel stated that it was not necessary as a general thing to erect barriers on the sidewalk to warn persons against using it when a building is being painted from a suspended stage, and that with forty-three years' experience he had never known a man to fall from a stage. Mr. Thomas, who had been a painter for thirtythree years, testified that he had never seen a man fall from a swinging scaffold. They were asked by the plaintiff's counsel whether, in their opinion, the suspension of a stage above a sidewalk "made the use of" the sidewalk more dangerous or dangerous, and the seventh, eighth and ninth exceptions are to the refusal of the Court to permit those questions to be answered. The burden was on the plaintiff to show that the injury was such as might reasonably have been anticipated, as a probable result of the work that was being done, and that could not be shown by the opinion of the witnesses that the suspended stage rendered the use of the sidewalk more dangerous or dangerous. That was the very question the jury had to decide upon all the evidence in the case, and it was incumbent upon the plaintiff to produce evidence from which the jury could infer that the suspension of the stage made the "use of" the sidewalk dangerous. There was nothing in the conditions surrounding the scene of the accident that would suggest the [268] propriety of allowing a witness, who was familiar with those conditions, to express an opinion as to whether the suspension of the stage rendered the use of the sidewalk unsafe, and the rule that allows a witness to state that a particular road, with which he is familiar, is in

87 N. E. 199; Regan v. Superb Theater, 220 Mass. 259, 107 N. E. 984; Mehler v. Fisch, 65 Misc. 549, 120 N. Y. S. 807. And see the reported case. See also Hurlstone v. London Electric Ry. 30 Times L. Rep. (Eng.) 398; McCarty v. Second Parish, etc. 71 Me. 318, 36 Am. Rep. 320. In Geist v. Rothschild, supra, it appeared that defendant made a contract for the doing of certain carpentry and painting work on its department store building. The contractor agreed to furnish all labor and materials and provide all necessary scaffolding and implements necessary therefor. The contractor sublet the painting part of the contract and retained no supervision over that work, which was done under the general supervision of an architect selected by the defendant, though he in no way controlled or directed the men doing the painting, or the manner of doing it, or directed the appliances to be used. While the plaintiff, a pedestrian, was passing the building, one of the slack ends of the rope by which the painter's scaffold was suspended, and which had been coiled up thereon, fell and struck her, causing serious injuries. It was held that the owner of the building was not liable. The court said: "No case has been cited by counsel, nor have we been able to find any authority which holds that there is such a primary duty or obligation upon the owner of a building to persons passing along on an adjoining public sidewalk, or to prospective customers who are going toward his premises where he conducts a public business, that he is liable in damages for the negligence of an independent contractor to such persons, when the injury occurs while they are going along such public sidewalk, or to such customers before they actually come upon the premises where he is conducting his business, or into some passageway or entrance way used as a part of the owner's premises. It is claimed by counsel for plaintiff that the owner is only relieved from liability for the negligence of his contractor whom he employs to perform work upon his premises by an independent contract, when the entire and exclusive control of the premises is surrendered to such contractor. We cannot give our assent to this contention, as in our opinion, it is not sustained by authority to the extent claimed.

...

The fact that the work was to be inspected by the architect to see that it was done according to the contract, does not make the defendant liable."

In Regan v. Superb Theatre, 220 Mass. 259, 107 N. E. 984, it appeared that the suit was brought to recover for personal injuries received by the plaintiff from the upsetting or tipping over of a stage erected by the employees of an independent contractor, for use by them in connection with the painting of a marquee over the entrance to the defendant

theater. At the time of its tipping over it stood on the sidewalk, parallel to the entrance to the theater and somewhat nearer to the entrance than to the curbstone. The men who worked on it had left it ten or fifteen minutes before, unwatched and unguarded. The plaintiff left her home to see the performance at the theater. She passed by the side of the staging, arrived in front of the entrance, and was about to enter, when the staging, seemingly lifted by a gust of wind, tipped over on her and threw her into a corner of the doorway. The staging was built of two trestles, each eight or nine feet high, standing eight or nine feet apart, connected by one or two boards or planks nine inches wide and one and a half or two inches thick, and not at either end fastened to the trestles. The ends of the boards or planks rested on the second rung from the top of the trestles, and the horizontal line of the plank was about seven feet above the sidewalk. The staging could be moved about as needed. The court in holding that the owner of the building was not liable said: "In the furnishing and erection of this staging the defendant had no part. In the painting it was interested only to see that the contract was performed in accordance with its terms. There was no occasion to anticipate that injurious consequences necessarily might follow from the placing and use on the sidewalk of a staging adequate for the work expected or required to be done by men who were to paint the marquee which was to be placed over the entrance to the theater building. In fact no harm came from the form of the structure, from the manner of its use, or from the careless acts of men in the execution of work while upon it. No one could foresee that the men would leave the staging unwatched and unguarded in the middle of a crowded sidewalk for more than a momentary period of time. There was no liability on the part of the defendant, and the verdict for the defendant was rightly ordered."

In Davis v. John L. Whiting, etc. Co. 201 Mass. 91, 87 N. E. 199, it appeared that the defendant contracted with a painter to paint the iron shutters of a building occupied and kept in repair by the defendant. In the performance of the work, a light ladder scaffold was used, and while this was being raised by tackle hung from the cornice, it came in contract with the bottom of a shutter which had been carelessly left open and raised it off its hinges, so that it fell on a passer-by in the street. The defendant was held not to be liable, the court saying: "The jury were instructed to answer this question: 'Was the work of painting the shutters on the building necessarily attended with danger to persons passing along Belcher Lane?' They answered it in the affirmative. If the ques

tion meant, 'Was there such risk of accident from the probable negligence or want of skill of some of the workmen as necessarily to involve an appreciable danger of injury to persons passing below,' there was evidence to warrant the finding. But the finding of this fact would not create a liability on the 'part of the defendant." In Mehler v. Fisch, 65 Misc. 549, 120 N. Y. S. 807, the petition alleged that the defendant, her agents, and employees were engaged in painting the front wall of the defendant's house, and while so engaged the defendant, Fer agents, and employees conducted the work so negligently that a scaffold fell and injured the plaintiff. At the trial it was shown by the evidence that the painting was being done, not by the defendant's servants, but by independent contractors. The trial justice submitted the case to the jury on the theory that the defendant was liable for the acts of the contractors if the jury believed that, in spite of her contract that the work should be performed by independent contractors, she, through her husband, supervised and took part in the work, or if the defendant did not exereise care in the selection of experienced and competent contractors. There was a verdict for the plaintiff and the appellate court in deciding whether the judgment could be sustained on the theories under which the case was submitted, said: "Upon the first point the justice's charge was correct, but there is not sufficient evidence to sustain a verdict for the plaintiff upon this point. The plaintiff claims that he heard the defendant's husband order the contractors to hoist the scaffold; but he does not state that the defendant's husband was even present at the time of the accident. Plaintiff's own witnesses do not corroborate him on this point, and his testimony is directly and circumstantially denied by the husband and by both contractors. I do not think that the respondent could seriously contend that the plaintiff has borne the burden of producing a preponderance of evidence upon this point. Nor can the judgment be sustained upon the theory that the owner did not exercise due care in engaging competent contractors. Even if the owner is under a duty, the plaintiff has not shown any failure to perform it. The work done here was not hazardous, nor requiring great skill. The contractors, while not long in this country and only just beginning to work for themselves, testify that they have had long experience as journeymen in work of this kind. Absolutely the only evidence of incompetence is the fall of the scaffold. Under such circumstances a judgment against the defendant could be sustained only upon the theory that the exemption of liability of an employer for the acts of an independent contractor is an exception to the rule of re

spondeat superior, and that the defendant must show facts which will bring him within the exception. I do not think that that is the law. The employer is not liable for the acts of the contractor, because the relation of principal and agent does not exist. If he is liable in this case, it is only for his own acts, and the plaintiff must show that he owed him a duty and has failed to perform such duty."

In McCarthy v. Second Parish, etc. 71 Me. 318, 36 Am. Rep. 320, it appeared that one who was engaged in business as a "slater" was employed to repair the roof of a church. While he and his employees were at work, they carelessly allowed a ladder which they used to get on and off the roof to be blown down by the wind and injure a passer-by. It was held that the owners of the church were not liable on the ground that the negligent act was the act of an independent contractor. See to the same effect Press v. Penny, 242 Mo. 98, 145 S. W. 458.

EXCEPTION TO RULE.

The owner of a building is liable for the negligence of an independent contractor in the use of a scaffold or ladder while engaged in painting or repairing the building where the negligence consists in the failure to perform a duty which the owner of the building cannot delegate. Moore v. Townsend, 76 Minn. 64, 78 N. W. 880. See also Press v. Penny, 242 Mo. 98, 145 S. W. 458. And see the reported case. In Moore v. Townsend, supra, it appeared that a painter who had been employed to paint the defendant's building placed one end of the ladder which he was using in the street, inclined it over the walk and rested the upper end against the building. The ladder was left in this position after the work had been completed for a period of thirteen days when it was blown down by an unusual blast of wind and injured a passer-by. The owner of the building was held to be liable. The court said: "The occupants and the owner of the building, without surrendering control over it, permitted the painter to create a nuisance in the public street when they allowed him to put the ladder in a position over the walk where it was a continual menace to all persons within its reach should it fall down. . . By employing an independent contractor the owner or occupants of the building could not relieve themselves of the continuing duty which they owed to the public not to create or maintain a public nuisance on their premises. Nor could the village absolve itself of a like duty in respect to permitting a nuisance to be maintained, partly or wholly, in its streets. If a ladder placed over the sidewalk, as this was, could be allowed to en