City of Anderson v. Fleming

• Decision Date: 22 May 1903
• Docket Number: 20,011
• Parties: City of Anderson v. Fleming
• Court: Indiana Supreme Court

67 N.E. 443

160 Ind. 597

City of Anderson v. Fleming

No. 20,011

Supreme Court of Indiana

May 22, 1903

From Superior Court of Madison County; H. C. Ryan, Judge.

Action by Elizabeth Fleming against the city of Anderson. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Reversed.

G. M Ballard, W. A. Kittinger, W. S. Diven and B. H. Campbell, for appellant.

C. K Bagot and Thomas Bagot, for appellee.

OPINION

Monks J.

This action was brought by appellee against appellant in March, 1900, to recover damages for personal injuries received in October, 1898, by stepping into an excavation in one of the streets of said city. A trial of said cause resulted in a verdict in favor of appellee, and, over a motion for a new trial, judgment was rendered thereon against appellant.

The errors assigned call in question the action of the court in overruling the demurrer to the complaint, in sustaining appellee's several demurrers to the second, third, and fourth paragraphs of answer, and in overruling appellant's motion for a new trial.

It is insisted by appellant that the complaint is insufficient, because: (1) It appears from the allegations contained therein that said excavation was made by a contractor in performing the work of improving a public street of appellant under a contract with appellant, and it is not averred that appellant had any notice or knowledge of the existence of said excavation at or before the time of appellee's injury; (2) it appears from the complaint that appellee was guilty of contributory negligence.

It appears from the complaint that on the night of October 14, 1898, appellee was walking along a public sidewalk in the city of Anderson, and that she fell into a deep excavation extending across said sidewalk, and was injured; that said sidewalk was "very much traveled by persons on foot; that the excavation across said sidewalk was of such a character as to render said sidewalk dangerous and unsafe for travel, and greatly to endanger life, limb, and the safety of persons traveling upon said sidewalk in the nighttime." There were no guards, lights, signals, or other warnings of danger to the public about or near said excavation. Appellee had no notice or knowledge of the existence of said excavation, and she was unable to see the same on account of the darkness of the night. Said excavation was made by an independent contractor under a contract with appellant for the improvement of a public street and the sidewalks on each side thereof. Said contract provided that said contractor "should maintain the sidewalks along said street during the construction of said improvement safe for travel by the general public, and that he should properly guard all places of danger along said street during the construction of said improvement." That appellant had full notice and knowledge that said excavation was made across said sidewalk, and knew of its existence from the time it was made. It is evident that the complaint is not open to the objections urged.

The facts alleged in the third paragraph of answer show that the excavation into which appellee fell was made by an independent contractor, under a contract with appellant for the improvement of a public street in said city.

It is insisted by appellant that a municipal corporation is not liable for the negligence or the wrongful acts of an independent contractor in the work of improving a public street under a contract with such corporation, and that for this reason the court erred in sustaining appellee's demurrer to said third paragraph of answer.

The general rule is that an employer is not liable for an injury caused by the negligence or the wrongful acts of an independent contractor in executing the work in compliance with his contract, but this rule does not apply when the contract requires the performance of work intrinsically dangerous. City of Evansville v. Senhenn, 151 Ind. 42, 59, 41 L. R. A. 728, 68 Am. St. 218, 47 N.E. 634; City of Logansport v. Dick, 70 Ind. 65, 78-81, 36 Am. Rep. 166, and cases cited; Park v. Board, etc., 3 Ind.App. 536, 538-541, 30 N.E. 147, and cases cited; Dillon, Mun. Corp. (4th ed.), §§ 1028, 1029; Elliott, Roads & Sts. (2d ed.), § 633; Shearman & Redfield, Negligence (5th ed.), §§ 164-168.

A municipal corporation is charged with the duty of maintaining its streets in a reasonably safe condition for travel. City of Crawfordsville v. Smith, 79 Ind. 308, 310, 41 Am. Rep. 612, and cases cited; City of Indianapolis v. Doherty, 71 Ind. 5, and cases cited; Town of Centerville v. Woods, 57 Ind. 192, 195.

As between the municipal corporation and the public the duty rests primarily upon the corporation, and cannot be evaded or suspended by any act of its own. City of Logansport v. Dick, supra; Park v. Board, etc., supra; Robbins v. Chicago City, 71 U.S. 657, 4 Wall. (U.S.) 657, 18 L.Ed. 427; Water Co. v. Ware, 83 U.S. 566, 16 Wall. (U.S.) 566, 21 L.Ed. 485; Brusso v. City of Buffalo, 90 N.Y. 679, and cases cited; Dillon, Mun. Corp. (4th ed.), § 1027; Note to Goddard v. Inhabitants of Harpswell, 30 Am. St. 411-413.

Judge Dillon, in his work on municipal corporations (4th ed.), §§ 1027, 1030, says on this subject: "§ 1027. Whether the duty of maintaining the streets in a safe condition for public travel and use is specially imposed on the corporation, or is deduced in the manner before stated, it rests primarily, as respects the public, upon the corporation, and the obligation to discharge this duty can not be evaded, suspended, or cast upon others, by any act of its own. Therefore, according to the better view, where a dangerous excavation is made and negligently left open (without proper lights, guards, or covering), in a traveled street or sidewalk, by a contractor under the corporation for building a sewer or other improvement, the corporation is liable to a person injured thereby, although it may have had no immediate control over the workmen, and had even stipulated in the contract that proper precautions should be taken by the contractor for the protection of the public, and making him liable for accidents occasioned by his neglect."

"§ 1030. Accordingly, the later and better considered cases in this country respecting streets have firmly, and, in our judgment, reasonably, established the doctrine that, where the work contracted for necessarily constitutes an obstruction or defect in the street, of such a nature as to render it unsafe or dangerous for the purposes of public travel, unless properly guarded or protected, the employer (equally with the contractor), where the injury results directly from the acts which the contractor engaged to perform, is liable therefor to the injured party. But the employer is not liable where the obstruction or defect in the street causing the injury is wholly collateral to the contract-work, and entirely the result of the negligence or wrongful acts of the contractor, subcontractor, or his servants. In such a case the immediate author of the injury is alone liable."

From the allegations of the complaint, which are not denied in said third paragraph of answer, it appears that in making said improvement under the contract, the contractor dug said excavation across said sidewalk, and that the same "rendered said sidewalk dangerous and unsafe for travel, and that it greatly endangered the life, limb, and person of persons traveling upon said sidewalk in the night-time." Under the authorities cited, if the excavation which occasioned the injury resulted directly from the acts which the contractor agreed and was authorized to do, and the same was of such a character as to render said sidewalk unsafe and dangerous for the purposes of public travel, as alleged, appellant was liable equally with the contractor for appellee's injury, if received by her without contributory fault. It follows that the court did not err in sustaining the demurrer to the third paragraph of answer.

The second and fourth paragraphs are pleas of former adjudication. It appears from each of said paragraphs of answer that in 1899 appellee sued the independent contractor who made said excavation across said sidewalk for the same injuries sued for in this action, and that a trial of said cause upon the merits resulted in a judgment against appellee. No objection is made to the form of said paragraphs, but it is insisted that the liability of the contractor and appellant was joint and several, and that a judgment on the merits in favor of the contractor can not be pleaded by appellant in bar of this action. The established rule in this State is that when a street of a municipal corporation is rendered unsafe by the wrongful act or negligence of a third person, and the corporation...