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Demand on Officials' Time. The various laws requiring action by railroad officials and the many hearings before legislative committees and commissions constitute a serious drain upon the time and strength of the higher railroad officials. In addition to the requisite knowledge of the technical railroad matters under their charge, these officials must have a considerable understanding of the law applying to railroads, the greater part of which is Statute Law, and which shows changes almost every year, sometimes changes of great importance. A careful study and a good working knowledge of the laws of the States in which a railroad operates is of great importance to the operating or managing official who, however, can better appreciate Statute Law if he has a good comprehension of the Common Law as a groundwork, which it is the purpose of this treatise to afford.
There are questions of consolidation, leasing of lines, taxation, land grants, municipal aid, federal, State, or municipal regulation, and many others concerning which the services of an experienced lawyer are proper and necessary, and which can feasibly be referred to him.
THE ENGINEER'S LEGAL RELATIONS WITH OTHERS
Engineer's Positions and Relations. The engineer may occupy the position of employer of other engineers; he may be the employee of another engineer; he may be the employee of a municipality, of some other corporation, or of some person, or of some association of persons. As an engineer in general practice, he may be the agent of others, whether corporations or individuals; he may engage in construction work as contractor. As a manufacturer of machinery, apparatus, appliances, or structures, he may occupy the position of seller. As a user of such articles he may be a buyer. He may exercise the special function of an expert witness in court or in hearings before some commission. He may be selected as arbitrator to settle some dispute. As consulting engineer, he may be an adviser of his client upon many business questions.
The nature of the operations directed by him also brings him into such relations with the general public that the engineer's duties and the public's rights must be properly understood and regarded. The relaticns of the engineer to others are thus extensive and varied, and the chapters preceding are intended to deal somewhat with these relations and the rights and duties connected with them; both the engineer's own rights and duties and those of others with respect to him.
Contracts for Services. Unless the engineer is a manufacturer, bis income depends upon some sort of express or implied contract for his services. His income or remuneration may be upon a salary basis; for a bill rendered, dependent upon the amount of service of the engineer and his employees; for a lump sum; based upon a percentage of cost; or upon a contingent fee. There may be other unusual forms of compensation.
In many cases, a written contract for services seems desirable. When a young engineer is employed by the day or week or month without a specified term of service, a written contract is not very necessary. The rate of wages is soon established and permanent employment has not been agreed to.
Formal Contracts. When an important position, at a large salary, is to be assumed, either a formal contract should be made, or an equally
clear arrangement be made by an interchange of letters sufficient to create a legal contract. This seems particularly desirable when the engineer resigns one good position to accept another.
Bill Rendered. Where services are to be paid for on bill rendered, either there should be an agreement as to the rate, or else custom should so well fix the value of services that a dispute of the bill would be improbable, and quite unlikely to be successful. The credit, general standing, and character of the client should be known and be satisfactory in any such case.
With New Corporations. An engineer employed by the officers of a newly organized corporation should have some assurance that he is legally employed, unless his personal knowledge of these officers gives him adequate assurance that his services will be paid for. When, however, without formal contract, his services are rendered with the knowledge of the proper officers and accepted and used by the board of directors the company is bound.
Associations of Individuals. Previous to the inauguration of important operations, individuals often get together and employ an engineer to advance their interests in opposition to the scheme of a railroad, or a city, or some private corporation. In most cases of this sort the members thus associated assume no financial responsibility and the engineer employed should protect himself by a written agreement with one or more of them whose financial ability is sufficient to furnish suitable protection.
Architect's Compensation. The compensation of an architect very commonly is by custom or agreement a percentage of the cost of the work. Unless there are special provisions to the contrary, the owner pays the bill even though the contract may specify that the architect is the agent neither of the owner nor of the contractor. Custom seems to be clear upon this point.
Architects are often called upon to furnish competitive plans, and the provision frequently is “no pay if not accepted,” or to be paid for “on adoption of plans" or "if we decide to build," or on condition that the structure can be built for a certain sum." This is a contingent fee and sometimes the contingency never happens. The architect should have, , in some way, a proper understanding of the terms before deciding whether to furnish plans.
OWNERSHIP OF PLANS
Ownership of Books and Plans. As to the ownership of note books and drawings, in the final analysis custom may often control. In building contracts it is now customary to provide that the plans belong to the architect. The owner of a private residence does not ordinarily want his plan duplicated. If the owner wishes to use the same plan for a number
of apartment houses, he should arrange with his architect to that effect. When competitive plans are invited there should be some understanding as to ownership after selection or award.
Copyright of Plans. Whether an architect or engineer may copyright plans seems somewhat in doubt. In any case it is not customary for him to do so. In this connection, it may be stated that the use of plans by the owner does not amount to publication and so does not authorize their use by others on the basis of publication without copyright. Maps and other prior publications may be used by an engineer for compilation but must not be used in a servile manner; there must be adaptation in some new way.
Note Books. An engineer in general practice substantially always uses his own note books and keeps them. Custom, no doubt, would sanction this and make it legal. The owner ordinarily has no use for them. A municipality, or a mill corporation which employs an engineer in general practice to do some special engineering work may properly desire to retain the note books, and an agreement to that effect should be made so as to assure the desired result. An individual or a corporation employing an engineer on a salary would properly expect to retain all note books and plans.
Inventions. An engineer or a mechanic who makes inventions directly in line with, and as a direct part of his employment, does not acquire title to them; they belong to the employer. When, however, his employment is not to produce inventions, and they are no more than suggested by his employment, they would ordinarily belong to him. stated elsewhere, inventions made outside of hours and not of a kind for which the engineer is directly hired, belong to the employee. There are bound to be uncertain cases close to the line.
Engineering Skill Required. Where an engineer or architect is employed in a private capacity, he undertakes to bring to his work the average skill of those engaged in a like kind of work. If he makes a specialty of some class of engineering, as structural, or as sanitary, he undertakes to use the average skill of others who make a similar specialty in such class of engineering. He does not in either case insure absolute accuracy, unless by custom checks are possible and in regular use which allow absolute accuracy to be secured.
What Service is Guaranteed. The engineer does guarantee : 1. Reasonable learning, skill, and experience. 2. The use of proper care and diligence. 3. The application of his best judgment. 4. Absolute honesty. The burden of proof is on him who disputes the engineer's skill and other qualifications. The engineer is, of course, liable if negligence on his part can be proved.
What an Engineer may Attempt. If an engineer of good training and experience is called upon, as often happens, to carry out work not altogether within the line of previous experience, and he enters upon his duties modestly and with earnest purpose to succeed, it is probable that strong evidence would be necessary to hold him liable for faults in his work if there seemed reasonable probability of success when he attempted the work. An engineer who never attempts work which he has not already demonstrated his ability to carry out, is of little use in the world. Where the result of failure is likely to prove serious and the probability of success definitely doubtful, the engineer should decline the service, unless the necessity seems imperative with no better alternative apparently available.
Public Officers. In the case of engineers who are public officers, the general rule is that in the exercise of judicial functions, public officers are not liable for faults in their action. For ministerial duties which are clear and for which funds and other resources are available, the officer is liable for failure to perform his duty. The repairs of highways or of bridges have in some cases been held to be duties of this sort. In the practical application of this principle, some difficulty is experienced, and in some States the engineer has been held liable and in others not. Where many highways or bridges need repairs and discretion is used as to which shall come under the appropriation, judicial functions may appear to exist. The engineer may profitably look up the law as to his liability, in the State where he holds office.
Error in Survey. In one case a City Surveyor made an error in a survey which by law he was required to make for a land owner, and it appeared that he used ordinary care and skill. He was held not liable on account of the error.
Lien for Services. Whether an architect or engineer has a mechanic's lien on a structure upon which he has been engaged, is somewhat uncertain. Unless provided clearly by statute, an architect or engineer who simply designs will probably be held not to be entitled to the lien. An engineer who is upon the ground giving instructions, inspecting the work, doing work not altogether dissimilar to that of a foreman, will be entitled to a lien in many, but not all States. The same general rule will apply where Statute Law gives precedence to labor debts.
ENGINEER AND CONTRACTOR
Engineer's and Contractor's Relations. The relations between the engineer and the contractor deserve comment. To a large and a growing extent, the contractor now is also an engineer. Most large contracting concerns, if not directly controlled by men of engineering training, regularly