City of Detroit v. Corey
| Decision Date | 13 April 1861 |
| Court | Michigan Supreme Court |
| Parties | The City of Detroit v. Jerome B. Corey |
Heard January 8, 1861 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]
Error to Wayne circuit.
The action was case for damages suffered by the wife of plaintiff from falling into a ditch or excavation opened on Grand River street, in the city of Detroit.
It appears, from the evidence, that Grand River street, at the place in question, was graded to the width of twenty-five feet. The south side of the grade, on the right hand coming into the city of Detroit, was occupied by the plank track of the Detroit & Howell plank road company. The ditch was opened on the north side of the grade, and there was a space of eight feet and two inches between the ditch and the plank track.
The plaintiff and his family came into Detroit, along this street, on Monday morning, November first, about 10 o'clock. The ditch was then open, and men were at work on it. The morning was misty, and the plaintiff sat on the side of the wagon farthest from the ditch, between which and him a young man sat holding an umbrella. They left Detroit, to return home, about 8 o'clock in the evening. The day and evening were misty and dark. There was opened a portion of the ditch five or six rods long, and about five feet deep. Men had been at work in this vicinity excavating and building a sewer, and had, as they progressed with the work, neglected, for six or seven days and nights preceding the day in question, to erect proper guards and lights, or any protection, to prevent accidents. At or near the place where said excavation was on the day in question, plaintiff, in returning home, met teams coming into the city, and turned off to the right to avoid them, not stopping, but driving forward after he had turned off, and, in so doing, drove into the ditch where it was five or six feet deep. His wife was thrown out, and received the injury complained of.
The proof, relative to the circumstances of leaving said sewer or ditch open, appears in the evidence of the following witnesses:
Andrew C. Walker testified as follows: "I reside in the town of Farmington, Oakland county; I am frequently in the city; I was in the day before election, in the fall of last year; came in between 10 and 11 o'clock in the morning; I observed a ditch at the point mentioned, near the plank; it was raining; my brother was with me; I had seen the ditch often."
George Mathews testified as follows:
M. W. Hicks testified as follows:
D. W. Fisk testified as follows:
The excavation or ditch spoken of was opened in the course of the construction of a public sewer along Grand River street, under the authority of the proper corporate authorities of the city of Detroit. The work was done under a written contract, bearing date September 7, 1858, which was duly entered into according to the provisions of the charter of said city, between said city of Detroit on the one part, and Daniel Sullivan and Daniel Shanahan of the other part, by the specifications attached to which it was provided, among other things, as follows:
"The contractor shall at all times keep the excavation fenced in or carefully guarded, as provided by the city ordinances, so as to prevent accident to the traveling public, and shall be liable for all damages that may arise from accidents in any way caused by neglect of the same."
The construction of the work was, by the contract, to be under the direction of the engineer of the city sewer commissioners, and no street was to be obstructed or disturbed except by his direction. And the streets so disturbed were to be regraded, graveled or planked as the case might be.
The court charged the jury as follows: That if they believed the facts which the testimony tended to prove, the plaintiff would be entitled to recover; and further said to the jury, that if the ditch in question was made under the authority of the city in building one of its public sewers, and was more than eight feet from the plank road of the Detroit & Howell plank road company, and was in the traveled part of the public street, it was the duty of the city to see that said ditch was not left open in the night time for an unreasonable length of time, so as to make it dangerous traveling on said street; and if said ditch was so left open in the night time, without guards, lights or beacons, or other protection, and in consequence thereof the plaintiff, without negligence on his part, drove into said ditch, and his wife was there injured, the city was liable.
The defendants then asked the court to instruct the jury:
First. That when the injury is the result of the negligence or misfeasance of a contractor in the building of a sewer, in a public street, according to a contract and specifications between the city and the contractor, the city is not liable; which the court refused to charge.
Second. That the defendants, under their charter, were obliged to let the work, which is alleged to have caused the injury, to the lowest responsible bidder; that all the diligence they were bound to use in letting the contract is to insert proper clauses in the contract, binding the contractor to use proper care against accidents in the prosecution of the work.
The court charged that the city is bound to let the work to the lowest responsible bidder, but refused to instruct the jury as prayed in the residue of the request.
Third. That the city is not liable to keep the streets in repair at all events, but only so far as under their charter they have means to do so; which the court refused to charge, saying to the jury that the city could not by their own direction put the streets out of repair, and protect themselves from liability for want of funds to make repairs, and whether this was the case was a question of fact.
Fourth. That the plaintiff, to recover on the ground of the non-repair of the streets, must show that the city had the means to keep them in repair.
The court refused so to charge, saying that would not be the case if the city themselves had put the streets out of repair.
Fifth. That the expenditure of money upon the repair of highways is a matter in the discretion of the city government. The court said that this is so, but has nothing to do with this case. To the charge as given, and refusal to charge, the defendants excepted.
The jury found a verdict for plaintiff, and assessed his damages at $ 20,000.
Judgment affirmed.
J. L. Chipman and G. V. N. Lothrop, for plaintiff in error:
The liability of the city, if it exists at all, must rest either upon the ground that the contractor is the servant of the corporation, or upon a ground which dominates over all relations of the city--that is, the ground that the city has power to repair the streets.
In support of this position, we remark that the case exhibits no fault in the original design of the sewer, in the powers given to the contractor, nor in the framing of the contract. The cause of the accident was the absence of proper guards and signals to prevent its occurrence.
Whose fault was it, in the contemplation of law?
As between the city and the contractor, the contract determines it to be the duty of the contractor to provide these guards and signals.
Whose duty was it as between the city and a third party?
This depends in a great degree upon the relation between the city and contractor.
1. Did the relation of master and servant exist between them?
Our answer is, that a contractor in possession of the subject of the work, controlling its performance, hiring and discharging the workmen, and bound to perform the work according to contract, plans and specifications, is solely liable for injuries occurring to third parties by reason of the negligent or tortious acts of himself or his employes. In legal contemplation he exercises a distinct and independent employment, which carries with it, from motives of policy and justice, a distinct and independent responsibility.
This is the rule of law in all cases where the work contracted to be done is legal, and the plan adopted by the contract for its...
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