City of Birmingham v. McCrary

• Decision Date: 10 July 1888
• Citation: 84 Ala. 469,4 So. 630
• Parties: CITY OF BIRMINGHAM v. MCCRARY.
• Court: Alabama Supreme Court

4 So. 630

84 Ala. 469

CITY OF BIRMINGHAM v. MCCRARY.

Supreme Court of Alabama

July 10, 1888

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

J. H McCrary brought suit against the mayor and aldermen of the city of Birmingham to recover damages for injuries sustained by reason of a ditch across one of the streets, including the sidewalks, of said city of Birmingham, being left open without proper lights, or other warning of danger, and into which the plaintiff fell the night of November 25, 1885, and broke his arm. The several defenses offered to the action sufficiently appear in the opinion. The contributory negligence charged on plaintiff was that he did know, or ought to have known, of the existence of the ditch, and consequently ought to have been looking out for the same at the time of his fall; he having passed along the street, on the opposite sidewalk, the afternoon of the same night the accident occurred, the 25th of November, and having had to step over the same ditch on the opposite side of the street. The ditch or excavation had been opened the afternoon of the day the injury was received. The merits and demerits respectively, of the charges given and refused, are set out in the opinion, and it is not necessary to here give the said charges in full. There was judgment for plaintiff, and defendant appealed.

Webb & Tillman, for appellant.

Mountjoy & Tomlinson and Smith & Lowe, for appellee.

SOMERVILLE J.

The present action is based upon the alleged negligence of the corporate authorities of the city of Birmingham in allowing a ditch or excavation made across a sidewalk, incident to the construction of a sewer, to remain open during the night-time, without covering, guards, or lights, in consequence of which the plaintiff fell in, and was injured by the breaking of his arm. The main defense relied on by the city is that the wrong act complained of was the act of one Stonestreet, to whom the city had lawfully let the contract of constructing the sewers, and that, under the terms of the contract, Stonestreet was an independent contractor, and, as such, was alone liable to the plaintiff for the damages claimed, if any one was so liable. Contributory negligence on the part of the plaintiff, and want of notice of the defect or excavation in the street, were also relied on by the defendant. The contract between the city and Stonestreet provided that the work was to be done according to certain plans and specifications, and under the supervision of the city engineer, so far as to make it his duty to inspect the laying of the sewer-pipes, and to accept and receive the work when completed; but neither the engineer, nor other city officers, had anything to do with the employment or direction of the hands, or of superintending the work while it was in progress, except that it was the engineer's duty to lay out the work, set the stakes fixing the depth the sewer-pipes were to be laid, and to see that they were laid at proper depth or grade.

The general rule is well settled, and not denied by appellee's counsel, that one person is not ordinarily liable for any injury produced by the negligence of another, unless the relation of master and servant exists between them; and that where such injury is done by an independent contractor, or one who reserves the general control over the work, with the right to direct what shall be done, and the manner of doing it, the quasi employer or contractee cannot be held liable for an injury resulting from the negligence of such contractor, or of his servants, and collaterally to the work contracted to be done, such work not being a nuisance per se. In all such cases the rule respondeat superior applies. Wood, Mast. & Serv. (2d Ed.) p. 603, § 314 et seq.; Id. p. 598, § 313; Cuff v. Railroad Co., 35 N. J. Law, 17, 10 Amer. Rep. 205. But there are two established classes of exceptions to which this general rule has no application. It does not apply (1) where the work contracted to be performed will, in its progress, however skillfully done, be necessarily or intrinsically dangerous; and (2) where the law imposes on the employer the duty to keep the subject of the work in a safe condition.

The first exception applies where the obstruction or defect which produced the injury results directly and necessarily from the acts which the contractor agreed and was authorized to do the person authorizing and the person authorized each being equally liable to the injured party, the relation of principal and agent, pro hac vice at least, existing between them, notwithstanding the employment may in other respects be independent. "It would be monstrous," said Lord CAMPBELL, in Ellis v. Gas Co., 2 El. & Bl. 767, "if the party causing another to do a thing were exempted from liability for that act merely because there was a contract between him and the person immediately causing the act to be done." The rule is said by Mr. Justice CLIFFORD, in Water Co. v. Ware, 16 Wall. 566, to be based on common justice, that, "if the contractor does the thing which he is employed to do, the employer is as responsible for the thing as if he had done it himself; but if the act which is the subject of complaint is purely collateral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the work [act] to be done." It is observed by Mr. Dillon, in his work on Municipal Corporations, that while the principal of respondeat superior does not generally extend to cases of independent contracts, where the party for whom the contract is to be done is not the immediate superior of those guilty of the wrongful act, and has no choice in the selection of the workmen, and no control over the manner of doing the work, it is important to bear in mind that this general rule "does not apply where the contract directly requires the performance of a work intrinsically dangerous, however skillfully performed." "In such a case," he adds, "the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself, or lets it out by contract." 2 Dill. Mun. Corp. (3d Ed.) § 1029. A fair illustration of this principle is found in the case of City of Joliet v. Harwood, 86 Ill. 110, 29 Amer. Rep. 17, where a city employing a contractor to construct a sewer, where the work necessarily involved the blasting of rock, was held liable for the damage resulting from a rock thrown by the blast against the plaintiff's house. The right of recovery was held not to rest on the charge of negligence by the contractor, who used all proper diligence in his work, but upon the fact that "the city caused work to be done which was intrinsically dangerous, the natural, though not the necessary, consequence of which was the injury to plaintiff's property." So, in the case of McCafferty v. Railroad Co., 61 N.Y. 178, we have an example of the principle that there is no liability where the injury is collateral to the work done by an independent contractor, and not a necessary result of its execution. There a railroad company lawfully let the work of constructing its road to a contractor, who sublet a part of the work to others. The employes of a subcontractor, by negligently overcharging a blast of powder, caused rocks to be thrown against the plaintiff's premises, resulting in the damage complained of in the action. The railroad company was held not to be responsible. In cases of this kind it has been held that the injury is presumed to be a necessary incident of doing the work, unless the defendant shows that it resulted from some act of negligence on the part of the contractor or his servants. Sabin v. Railroad Co., 25 Vt. 363. Mr. Wood, in his work on Master and Servant, thus formulates the principle: "When the work cannot be done at all, in the ordinary modes of executing it, without producing injury and damage, the contractor is liable; but when the injury and damage result simply from the careless or improper mode of executing the work, and the contractee has been guilty of no negligence in selecting a contractor, there is no principle of law which casts upon the contractee the burden of responsibility;" "and," he adds, "a contrary doctrine would be disastrous in its consequences, and serve seriously to embarrass and retard the proper use and healthy development of property, and the growth of cities and towns." Wood, Mast. & Serv. p. 609 et seq.; Id. p. 603, § 314. Such is the rule governing the first class of excepted cases above enumerated, where the work contracted to be performed is intrinsically dangerous, or arises from the very nature of the improvement, which is said by Mr. Dillon to be applicable to work done by independent contractors, according to the later and better considered cases in this country. This doctrine he states to be 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,...