Blumb v. City of Kansas

• Decision Date: 31 October 1884
• Parties: BLUMB, by Guardian, v. THE CITY OF KANSAS, Appellant.
• Court: Missouri Supreme Court

84 Mo. 112

BLUMB, by Guardian,

v.THE CITY OF KANSAS, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. T. M. GILL, Judge.

REVERSED.

Wash Adams and R. H. Field for appellant.

(1) There was no privity whatever between the city and the servants of the contractor, and hence it is not liable for their acts. Kelly v. Mayor, 11 N. Y. 433; McCafferty v. R. R., 61 N. Y. 178; Joliet v. Seward, 86 Ill. 402. (2) The city was not liable for the failure of the city engineer to suspend the doing of the work, though he might have done so if he saw fit to under the contract, because that was discretionary with the engineer. Dillon on M. C. (3d Ed.), sec. 949; Edwards v. Ferguson, 73 Mo. 686; Schoettgen v. Wilson, 48 Mo. 253. (3) The doctrine of Welsch v. St. Louis, 73 Mo. 71, and that class of cases, holding a city liable for injuries resulting from putting or leaving the street itself in a dangerous condition, is inapplicable to the case at bar. Campbell v. Montgomery, 53 Ala. 527; Russell v. Columbia, 74 Mo. 492.

W. J. Scott and D. J. Haynes for respondent.

(1) The city engineer had the general supervision of the work and was empowered by the terms of the contract to cause the discharge of workmen, to annul the contract or suspend the work whenever, in his judgment, there existed good cause therefor. (2) The city reserved the right to suspend the work, and it was its duty to do so whenever life or property were endangered by the manner in which the same was prosecuted. The city has exclusive control and power over its streets. Amended Charter of Kansas City, p. 13, sec. 1, paragraph 7; 2 Dillon on Mun. Corp., sec. 538. And having such control and power, it was its duty to keep its streets in a safe condition, and failing in this duty, it became liable for all injuries resulting from this negligence. The City of Logansport v. Dick, Adm'r'x, et al., 70 Ind. 80; Loewer v. City of Sedalia, 77 Mo. 443; Russell v. Columbia, 74 Mo. 480; Staples v. Town of Canton, 69 Mo. 592; Bassett v. St. Joseph, 53 Mo. 290; Hull v. Kansas City, 54 Mo. 598; Blake v. St. Louis, 40 Mo. 569. And the city cannot, by any contract it might make, avoid its liability to third persons for injury resulting from a breach of its duty in the care and control of its streets. Logansport v. Dick, Adm'x, et. al., 70 Ind. 80; Russell v. Columbia, supra; Mahanoy Township v. Scholly, 84 Pa. St. 136; Grove v. Fort Wayne, 45 Ind. 429; Mayor and Aldermen of Memphis v. Lasser, 9 Humph. (Tenn.) 760; Nashville v. Brown, 9 Heisk. (Tenn.) 1; Nashville v. Brown, 24 Am. Rep. 289; The Town of Centerville v. Woods, 57 Ind. 192; Blake v. St. Louis, supra; 2 Dillon's Mun. Corp., sec. 791; Detroit v. Corey, 9 Mich. 165; Storrs v. Utica, 17 N. Y. 104; Welsh v. St. Louis, 73 Mo. 73; Chicago v. Brophy, 79 Ill. 277. And it makes no difference that the city was compelled to or did let the work to the lowest bidder. 2 Dillon on Mun. Corp. 791; Detroit v. Corey, supra. The position of the injured party is of no consequence; the question is, whether the injury resulted from a neglect of duty on the part of the city. Kiley v. City, 69 Mo. 108; Bassett v. St. Joseph, 53 Mo. 290; McGary v. Loomis, 63 N. Y. 104.

HENRY, C. J.

This is an action to recover damages for an injury to plaintiff, from a blast made in constructing a sewer in the City of Kansas, by which a stone was thrown upon or against plaintiff. In 1881, the city let a contract to one O'Connell, to build a district sewer in Locust street, from Tenth to Twelfth street, to be paid for in special tax bills against property in that sewer district, and, in the course of constructing the sewer, it became necessary to remove, by blasting, rock that was encountered in the prosecution of the work, and it was in making a blast for that purpose that plaintiff received the injury complained of. She recovered against the city a judgment for $2,000, from which the city has appealed. By the contract between the city and O'Connell, the former had the right to annul the contract or suspend work under it, at any time during its progress, whenever, in the judgment of the city engineer, there was good reason for doing so. It was also made obligatory upon O'Connell to discharge any workman engaged upon the work who should disobey any direction of the city engineer, as to the workmanship, or material used, or expended upon the work.

There was evidence to the effect that blasting is dangerous, but may be done by careful management, and is not necessarily dangerous. There was also evidence to the effect that the city engineer was notified by Mr. Mills, a citizen living in the vicinity, that the men engaged in the work were guilty of carelessness in making the blast, but that the city engineer took no steps to stop this careless blasting. He made no report of the fact to the city council, or remonstrance to O'Connell. On the foregoing facts the question of liability of the city to the plaintiff depends. The numerous cases cited by respondent's counsel, in relation to the duty of a city to keep its streets in a safe condition for public travel, have no application to the case at bar. The city was in the discharge of a duty in making this sewer, and the complaint here is, not that the plaintiff was injured by any defect in a street, but by the negligence, or carelessness of a contractor employed by the city to construct a work of public utility, in the performance of which she was injured by a stone, which, in blasting rock, was thrown against her.

The city had let the entire contract to construct the sewer to O'Connell. It had no control over the persons hired by him, except as stipulated in the contract--and that only went to the extent of obliging O'Connell to discharge any workman who should disobey any directions of the city engineer, as to the workmanship, or material used, or expended upon the work. It did not give the engineer, or the city, the right to discharge them, and this permission had no reference to the manner of doing the work, but only to the workmanship, the character of the work, and the quality of the materials used. Certainly the mere reservation of the power to suspend the work, or annul the contract, did not make the city liable for negligence in the construction of the work. If there was good ground for either suspending the work, or annulling the contract, there is no evidence that the city was so informed by the city engineer. He, it is true, was notified that O'Connell's men were negligently making blasts, but that was not communicated by him to the city council as a sufficient reason in his judgment for suspension of the work, or cancellation of the contract. It cannot be declared as a matter of law, that for any negligence of O'Connell in the prosecution of the work it was the duty of the city to suspend it, or cancel the contract. No such right was reserved in the contract. The right reserved was to suspend the work, or annul the contract whenever, in the judgment of the city engineer, there was good reason for doing so.

The case of Kelly v. The Mayor, 11 N. Y. 433, in its main features is similar to this. A still stronger case, in the same line, is that of McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y. 180, where a railroad company let the contract to an...