Bailey v. City of Winston

• Decision Date: 22 November 1911
• Parties: BAILEY v. CITY OF WINSTON.
• Court: North Carolina Supreme Court

72 S.E. 966

157 N.C. 252

BAILEY v. CITY OF WINSTON.

Supreme Court of North Carolina

November 22, 1911

Appeal from Superior Court, Forsyth County; Adams, Judge.

Action by M. D. Bailey, Jr., against the City of Winston. Judgment for plaintiff, and defendant appeals. No error.

A question tending to show bias of the witness is competent.

This action was brought by the plaintiff to recover damages for injuries sustained by his falling into an unprotected sewer ditch, which was being constructed on Liberty street, within the corporate limits of the city of Winston. The plaintiff alleged that the ditch was not properly guarded and protected on the night that he fell into it and was injured; whereas the defendant averred that it was sufficiently protected and, if plaintiff suffered injury, he brought it upon himself by his own carelessness and negligence, and also by reason of the fact that he was intoxicated. The principal matters involved in the case were questions of fact, and the plaintiff offered evidence to sustain his contention; that is, that the ditch was not properly guarded and protected and that he was not intoxicated. The defendant offered evidence to the effect that the plaintiff was a drinking man that the ditch was protected by sufficient lights, ropes, and other barriers. Upon the issues thus raised the jury adopted the plaintiff's version of the facts, and rendered a verdict for him, as appears in the record. The defendant appealed from the judgment entered upon the verdict.

Manly, Hendren & Womble, for appellant.

L. M. Swink and J. E. Alexander, for appellee.

WALKER J.

It appeared that the ditch was two feet wide and nine feet deep, and was so near the path in common use, and in such an exposed position with reference to the street, that it became necessary to safeguard pedestrians and others using the sidewalk and street by placing lights or barriers, or both, if the situation required them, at or near the excavation, so as to prevent an injury to them by falling into the ditch. The city had the clear right to dig the ditch for the purpose of laying mains or pipes in the construction of a water or sewerage plant, and to employ the Bibb Company to do the work, but it did not, by reason of that fact, shift its duty and responsibility to those using its streets and who are injured by any defect in them, provided it had or should have had notice of the defect. The plaintiff had the right to use the street in going from the Kinzendorf Hotel, where he was boarding, to Gentry's Dog and Pony Show, under the circumstances shown in the evidence.

The jury found, under proper instructions from the court, that he was not guilty of contributory negligence, so that the only remaining question is: Was the ditch properly guarded? The defendant contended, and introduced evidence to prove, that it was, and that the injury was not caused by any negligence in that respect, either of the city or the independent contractor, assuming for the sake of discussion that the Bibb Company was such a contractor. Evidence was introduced by the plaintiff to show that there was negligence in the fact that no proper safeguards had been placed at or near the ditch to warn approaching pedestrians or others using the street of the danger. The defendant excepted to the charge of the learned judge (W. J. Adams) upon the ground that he had told the jury that it was the duty of the defendant to guard the dangerous place both with lights and barriers, but we do not so understand the very able and clear-cut charge of the judge; on the contrary, he instructed the jury that the defendant was required to exercise only ordinary care in the matter, and to guard the place by "lights or barriers," or in such other way as was reasonably sufficient for the protection and safety of the public. The charge was eminently fair and just to both parties, and, after a careful consideration of it, we think it stated fully, and with remarkable clearness, the principles of law applicable to the facts as the jury might find them to be, and is entirely without error. The city of Winston was under the duty to keep its streets in proper condition and repair, and, if in prosecuting any work of public improvement it became necessary to dig a ditch in one of them, the law requires that it should protect the public against injury therefrom by sufficiently guarding the dangerous excavation in the exercise of such care at least as a prudent man would use under like circumstances.

The duty and liability of a municipality in this respect is well stated in Moll on Independent Contractors' and Employers' Liability, §§ 139-140, though we do not quote him literally: It is not easy to determine when a municipality is liable for the negligence of a contractor. It certainly cannot relieve itself from the duty which rests upon it by transferring that duty to the contractor. The corporation must see that the public is properly protected, and, if the contractor fails to perform that duty, the city is liable for the resulting damage. The city will be responsible for the acts of an independent contractor if the matter involved in his contract is one of absolute duty, owed by the city to an individual, or the work is intrinsically dangerous, or when properly done creates a nuisance. It is the general rule that a city will be liable for the negligence of a contractor in its employ, where the work is performed under the direct control of the city's own officers. If otherwise liable, a city will continue liable, although it has no control over the workmen of a contractor, and although it has in its agreement with the contractor stipulated that he shall be liable for accidents occasioned by his neglect. If the work be done by an independent contractor, the city will not be answerable where the injury is through some negligence of the contractor or his servant, not amounting to a failure of a duty which the city itself owes to the person injured; otherwise it would be liable for his neglect in like manner as where the work is executed by its officers. Whether the city will be jointly liable with a contractor must depend on the circumstances of the case. If, for example, an excavation is left unguarded or unlighted by the contractor during the progress of the work, and the city has notice of its dangerous condition, express or implied, then the city will be liable to a traveler who without fault on his part is injured by driving or falling into it, because it would be liable if the excavation were made by a stranger. It may be said generally that it is as much the duty of a municipality to remove or guard against an obstruction to a public highway placed there by a third person as if it was so placed by the city itself, provided the city has actual or implied notice. The duty of the city to erect barriers and to establish signals in case of dangerous defects, etc., in the highway is not discharged by engaging a contractor to perform it. But, where the negligence relates to a matter with reference to which the corporation is under no special obligation, the liability rests on the contractor alone. The generally accepted doctrine in this country is said to be "that a municipality which is charged with the duty of keeping certain highways in safe condition for public travel, and which has either authorized, or has been constrained by the operation of statute to permit, the performance of the work which, in the absence of certain precautions, will necessarily render one of these highways abnormally dangerous for the time being, is liable for injuries caused by the absence of these precautions, whatever may be its relation to the party who is actually engaged in doing the work. The municipality lies in this regard under a primary, absolute, or nondelegable duty, in the performance of which it is bound to use reasonable care and diligence." Moll Ind. Contractors, p. 243, note 71, and cases cited in that and the other notes to sections 139 and 140, especially Bennett v. Mt. Vernon, 124 Iowa, 537, 100 N.W. 349, where it is said: "If the matter involved was one of positive duty to the plaintiff, then, of course, the defendant town could not relieve itself by delegating the work to an independent contractor. Or if the work itself was intrinsically dangerous, or, when properly done, was likely to create a nuisance, the defendant town would be responsible for any damage resulting therefrom. Wood v. Ind. Dist., 44 Iowa, 30."

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