Brother v. White

• Decision Date: 30 September 1883
• Citation: 71 Ga. 506
• Court: Georgia Supreme Court
• Parties: Wilson & Brother. vs. White.

71 Ga. 506

Wilson & Brother. vs. White.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

Actions. Damages. Negligence. Contractors. Principal and Agent. Streets and Sidewalks. Atlanta. Before Judge Clark. City Court of Atlanta. December Term, 1882.

To the report contained in the decision it is only necessary to add the following: Mrs. Mary L. White brought her action for damages against W. S. Wilson & Brother, to recover on account of a permanent physical injury alleged to have been received by her by falling over a pile of brick left by defendants at night on a sidewalk, in the city of Atlanta, which they were engaged in repairing. She also alleged that it was their duty, under the municipal ordinances, to have kept a burning signal light upon such obstruction to notify passers, and that a failure to do so caused the injury. Expenses of doctors' bills, etc., were alleged.

On the trial, the jury found for the plaintiff $700.00, "permanent damages, " and $50.00 "physician's bill." Defendants moved for a new trial, on the following among other grounds:

(1.) Because the court admitted in evidence for plaintiff the following testimony of plaintiff over the objection of defendants: " I had nothing to go on, and had to sell my house and lot to get money to go on, on account of this injury."

(2.) Because the court, after counsel for defendants had requested that he charge the jury in writing, and had so requested before the argument of the cause had begun, erred in charging the jury orally as follows: " Gentlemenof the jury, in this case I depart from my usual habit of charging the jury orally, because counsel for defendants has requested me to charge the jury in writing."

(3.) Because the court erred in charging the jury as follows: "If you should believe from the evidence that the accident was caused by the neglect of the person who had the contract to lay the pavement on the property of Capt. H. Jackson, or of his servants, in not putting up signal lights at night on the obstruction put upon the sidewalk, as the city ordinance requires, if you believe such obstructions were so placed, and that, because of this, plaintiff was injured, and at the time of the injury it was not in her power to have avoided the injury by reasonable care— always provided you should believe the failure to put out such signal lights was an act of negligence—then, if you should thus believe, the negligence necessary to plaintiff's recovery will have been established."

(4.) Because the court erred in charging the jury as follows: " You will observe, gentlemen, I have said the negligence must be by the person, or his servants, who had the contract to lay the pavement. Upon this point, gentlemen, if you believe from the evidence that defendant took the contract with Capt. H. Jackson to lay the sidewalk in question, and sublet that contract to one Backus, on the condition that the defendant was to furnish the brick and Backus to furnish the sand and lay the brick, and that upon the principles of law I have given you in charge, Backus would be liable, —the defendant would be liable, provided you believe from the evidence that the work he, the defendant, contracted to do necessarily constituted an obstruction or defect in the street which rendered it dangerous to travel if the lights, as required by the ordinance of the city of Atlanta, were not there on the night and at the time of night of defendant's (plaintiff's) alleged injury, and that that was an act of negligence."

(5.) Because the court erred in refusing to give the following written requests to charge the jury, made bydefendants in terms of the law: 1st. If the lights were in point of fact displayed, lamps properly filled and lighted, and were extinguished from some unknown cause, or from no negligence of defendants, that is all the law required. The law would not require defendants to stand guard over the lights all night. 2d. If Wilson & Brother sublet the work to Backus by a contract for so much per yard, then Backus would be a contractor, and Wilson & Brother would not be liable if the injury was caused by the negligence of Backus or the servants of Backus.

(6.) Because the verdict was contrary to law and evidence.

The motion was overruled, and defendants excepted.

Frank A. Arnold, for plaintiffs in error.

Milledge & Haygood, for defendant.

Hall, Justice.

The owner of a lot in the city of Atlanta contracted with the defendants to furnish material and lay a pavement on the street adjoining said lot. The defendants hauled the brick for laying the pavement, and piled them up in the gutter beside the place where the work was to be done. They engaged the services of one Backus to provide the sand and lay the brick, agreeing to pay him a stipulated price per yard for the work. Having no lamps of their own, they also requested Backus to provide signal lights and place them upon the brick, while the improvement was going on and while the street was obstructed. The plaintiff, in going along the sidewalk at night, and for the want of a light, as she alleged and proved on the trial, came in contact with the brick deposited at that point, and was seriously injured. She brought her suit against these contractors to recover damages for the injuries she sustained. Among other defences set up by them, was the fact that Backus was the contractor in charge of the work at thetime of the action, and he, if any one, was liable for the wrong, and that they were not.

To this defence two replies were made. First: That Backus was not a contractor, but merely the servant of the defendants, who were in fact the contractors and the responsible parties for the injury. Second: That whether Backus was a contractor or not was immaterial, inasmuch as the defendants were the owners of the material which caused the injury, and were required by the ordinances of the city to put lights thereon at dark, and " so to place and prepare them with such diligence and care as to provide and reasonably insure the burning thereof until daylight, " and that they could not escape responsibility to any one injured by carelessness in this respect by agreeing with another to discharge this duty to the public which had in express terms been enjoined upon them by law.

1. "Unquestionably, " says Williams, J., who delivered the judgment of the court, in Pickard vs. Smith, 10 C. B. (N. S.), 470, (100 E. 0. L. R), " no one can be made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the cause of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not responsible. To this effect are many authorities, which are referred to in the argument. The rule is, however, inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do; nor, by a parity of reasoning, to cases in which the contractor is entrusted with a duty incumbent upon his employer, and neglects its fulfillment, whereby an injury is occasioned."

Now, was Backus an independent...