Callahan v. Salt Lake City

Decision Date21 June 1912
Docket Number2327
Citation125 P. 863,41 Utah 300
CourtUtah Supreme Court
PartiesCALLAHAN v. SALT LAKE CITY

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by M. E. Callahan against Salt Lake City.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

S. P Armstrong for appellant.

D. J Dininny and P. J. Daly for respondent.

FRICK, C. J. McCARTY, J., concurs. STRAUP, J., concurs in result.

OPINION

FRICK, C. J.

Appellant brought this action against Salt Lake City, the respondent, to recover damages. The material allegations of the complaint are as follows:

"That the city contracted with P. J. Moran to grade and pave Fifth East Street; that on and before May 25, 1908, said Moran plowed up said Fifth East Street along the east side of the block in which plaintiff's house is situated; that the city negligently suffered him to throw and leave in the open gutter on the west side of the street earth and rubbish, thereby obstructing the gutter so that it was not capable of carrying off the water, and negligently permitted said condition to remain during the night of May 25th and morning of May 26th; that on said night there was a rainfall causing a large flow of water down said gutter that was diverted by said obstruction onto plaintiff's property, into his cellar, damaging his house."

Respondent denied all negligence and averred that the damages, if any, were caused by an act of God.

At the trial it was made to appear that on the 4th day of May, 1908, respondent entered into a contract with the P. J. Moran mentioned in the complaint whereby he agreed to pave with asphalt and concrete a roadway sixty-six feet wide on Fifth East Street between South Temple and Third South Streets in Salt Lake City; that by the terms of said contract he agreed to "execute all of the said named work in a good, substantial, and workmanlike manner, and to furnish all the materials and all the tools and labor necessary to properly perform and complete the work ready for use in strict accordance with the attached specifications." The contract also contained other provisions which appellant deems material and which in substance are as follows: That the contractor shall make and maintain sufficient guards and barricades and do all things to prevent "accident or loss of any kind;" that whenever the contractor is not present at the work and at such time instructions become necessary the board of public works or the city engineer may give the necessary orders to the superintendent or foreman in charge of the work; that any work which is defectively done shall be removed by the contractor whenever directed to do so by the board aforesaid; that the contractor shall employ suitable mechanics and if any person employed by him is incompetent, disorderly, or disobedient to the board of public works or to the city engineer, such person shall be discharged by the contractor upon request of said board or engineer; that the contractor shall commence work at such place as he may be directed and shall conform to such directions as the board shall give with respect to the order and time in which different parts of the work shall be done; that the contractor shall comply with the ordinances of the city in so far as they may affect his employees or the disposition or transportation of the materials and shall assume all liability, and he agrees to indemnify the city against all loss or damage that may be occasioned by the doing of the work contemplated by the contract. Appellant's counsel also introduced in evidence several city ordinances and has incorporated them into the bill of exceptions. As we view the case, these ordinances were not intended to have, and do not have, any effect upon the case one way or the other. We shall therefore not refer to them further.

At the trial it was made to appear that the ditch or gutter referred to in appellant's complaint was some distance outside of that portion of the street which was being prepared for paving and which was to be paved under the contract referred to; that in turning the teams in scraping the dirt in that portion of the street which was being prepared for paving the witnesses assumed, rather than stated it to be so, that, on the day preceding the night on which the injury complained of occurred, some of the loose dirt was scraped some distance outside of the plowed portion of the street and was either scraped into the ditch or gutter, or left so near it, that such dirt was washed into the ditch by the flood which came down the street and gutter on the night aforesaid; that the flood was due to what, for this locality, the witnesses said was an extraordinary and unusual rainstorm; that the ditch or gutter in question had always theretofore been of sufficient capacity to carry off flood waters; that in paving the street the contractor was required to construct concrete or cement gutters on either side of the sixty-foot strip and to connect the same with a concrete or cement curbing which extended some distance above the bottom of the gutter; that the gutter or ditch referred to in the complaint was some distance away from the gutter and curbing aforesaid; that it was not necessary that the contractor should interfere with or come in contact with the ditch or gutter in question, and it was not contemplated by the contract that he should or was required to disturb the same in any way. There was no evidence that any city official or employee knew or was apprised of the fact that the contractor was scraping dirt into or near the ditch or gutter in question, if, indeed, such was the case.

For the purposes of this decision we shall assume that the dirt was placed into or near the gutter aforesaid by the contractor.

Appellant also showed that there was a culvert over the ditch which was used by the residents on the west side of the street as a driveway, to reach their homes with teams and wagons; that the flood waters washed the dirt and debris down the ditch, and the same lodged against the culvert aforesaid and filled up the ditch at that point so that the water was turned to the west and flowed onto the premises and into the basement of appellant's house and caused the damages complained of.

After substantially proving the foregoing facts, appellant rested his case, and respondent's counsel interposed a motion for a nonsuit upon various grounds, one of which was that from the undisputed facts before the court it was clearly

made to appear that Mr. Moran was an independent

contractor, and that under the facts as aforesaid respondent was not responsible for his negligent acts which it is claimed caused the injury and damages to appellant's property. The court sustained the motion upon the ground stated and entered judgment dismissing the action.

The only questions for determination are: (1) Whether Moran, under the contract in question, was an independent contractor; and (2) if so, whether, under the undisputed facts, his acts were such for which respondent was, nevertheless, responsible.

Appellant contended in the trial court, and now asserts that Moran was not an independent contractor, and that respondent is liable for his acts of commission as well as omission in case such acts or omissions...

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