City of Erie v. Caulkins

• Decision Date: 07 January 1878
• Citation: 85 Pa. 247
• Parties: City of Erie v. Caulkins.
• Court: Pennsylvania Supreme Court

85 Pa. 247

City of Erie v. Caulkins.

Supreme Court of Pennsylvania.

January 7, 1878

October 15, 1877

1. Where an injury occurs to a passenger through an obstruction in the public street, placed there by the negligence of a contractor exercising an independent employment, a municipality is not responsible therefor unless by the terms of her contract the contractor is under her management.

2. A stipulation in her contract that her engineer shall have power to direct changes in the time and manner of conducting the work, is not such a reservation of power as will make her liable for the injury occasioned by the negligence of the contractor.

3. No additional liability is incurred by the municipality by reason of her taking a bond to indemnify her against any loss or damage resulting from a failure of the contractor to perform his duty.

4. Painter v. Mayor of Pittsburgh, 10 Wright 213; Reed v. City of Allegheny, 29 P. F. Smith 300 followed.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON WOODWARD and STERRETT, JJ.

Error to the Court of Common Pleas of Erie county: Of October and November Term 1877, No. 40.

Case by Harriet J. Caulkins against the city of Erie to recover damages for injuries received from falling over an obstruction in the street and partially into a sewer then in process of construction. In the fall of 1872, the city of Erie entered into a contract with Peter Grant to construct a sewer in State street in said city. While being constructed the plaintiff in passing across said street fell over an obstruction into said sewer injuring her wrist and arm. It appeared that the night was dark at the time of the accident and there was no light hung near the excavation to give passengers warning.

Among the general specifications in the contract between the city and Grant were the following:--

" The contractor will be required to guard the public effectually from liability to fall into the trenches or from upsetting their vehicles against the earth thrown from them during the whole progress of the work, both by night and by day; and will be held responsible for any damages the city may have to pay in consequence of neglecting the necessary precautions.

The contractor will be required to dismiss from his employment all incompetent or unfaithful persons; also, to keep in perfect repair, for six months after its completion, the whole of his work, except in cases where the repairs may be rendered necessary by causes clearly beyond his control.

All the work to be commenced and carried on at such times and in such places and in such a manner as the engineer shall direct, he being aided by his assistants and inspectors. No work will be paid for unless accepted by the engineer or some other person appointed by the said street committee for the purpose. ‘ The contractor will not be allowed to open up more than one hundred feet of said State street at a time without the consent of the city engineer, and he is to keep clean the street after him so as not to interfere with travel any more than can be helped." DDD'

Grant was also required to and gave a bond to idemnify the city from any loss arising from failure on his part to perform his duty.

At the trial before Vincent, P. J., the following points were submitted by the plaintiff, all of which the court affirmed.

1. That the defendant at all times is under legal obligations to the public to keep its streets and sidewalks in such condition and repair as will enable all persons and the public to pass along, upon and over them with safety; and if the jury believe, from the evidence, that the injury to the plaintiff was caused by the dangerous and unsafe condition of the street or crosswalk, at the southeast corner of State and Seventh streets, without any contributory negligence on her part, their verdict should be for the plaintiff.

2. That the city of Erie, defendant, having expressly reserved the right of public travel upon and along said State street, in its contract and specifications with Grant for construction of a sewer in State street, and having taken a bond of indemnity from said contractor to save and keep harmless the said city from all loss and damage on account of all such claims as presented in the case at bar, and having expressly reserved, by the terms of said contract and specifications the right and power to direct and control the work; " the work to be commenced and carried on at such times and in such places and in such a manner as the engineer shall direct, he being aided by his assistants and inspectors," being the language of the contract therefore the rule, as stated in the case of Painter v. The Mayor, & c., of Pittsburgh, 10 Wright 213, cannot apply in this case.

3. That if the jury believe from the evidence that the injury to the plaintiff was caused by the negligence of the city of Erie, through its officers, agents and employees, in not placing around the excavation (at or near the corner of Seventh and State streets, where the injury occurred), the necessary and proper barricades, lights, & c., without any contributory negligence on part of plaintiff, their verdict should be for the plaintiff.

The following points of defendant were all negatived by the court:--

1. The city of Erie is not liable for the acts or negligence of another, unless the relation of master and servant or principal and agent exist between them. If the injury sustained by plaintiff was caused by the negligence of a third person, not in the employ of the city, the plaintiff cannot recover in this case.

2. If the excavation, into which the plaintiff fell, was made by a contractor for said work, in accordance with the Act of Assembly and ordinances of the city of Erie, and not by regular officers of said city, such contractor is not an agent of said city, for whose negligence or the negligence of whose workmen the city would be liable, and the plaintiff cannot recover.

3. That the defendant, having by contract given to Peter Grant the construction of the sewer, is not responsible to the plaintiff for any injury she may have sustained through the negligence of the contractor or any of his agents or servants.

6. The taking of the bond from the contractor, in connection with the contract, does not increase or change the liability of the city to plaintiff in this case.

In their general charge the court said:--

" We have no means, except negatively, of knowing the exact terms of the contract referred to in 10 Wright 213, but we may, we think, fairly infer that the city of Pittsburgh reserved no power to control the manner in which the work should be carried on, no right to use the street during the progress of the work, no power over the men employed by the contractor, and took no indemnity against any damages it might have to pay arising from the neglect or carelessness of the contractor in doing his work.

In the case before us the city of Erie made all these reservations, and, having made them, we think we are bound to conclude that the defendant did not intend to relieve herself from her general responsibility to those who might be injured in consequence of the carrying on of this work, and that the reservation of the control the contract gave them over the workmen employed by the contractor made them its agents, and it their superior, even if the reservation of the right to continue the use of the street did not.

We intend to defer fully to the authority of the Supreme Court, as is our duty by the rules of law, as well as due and proper courtesy from an inferior court to that of last resort.

But it is also our duty to decide upon the applicability of the decisions to the case in hand; and we are of the opinion that the cases cited by counsel for the defendant are based upon a state of facts so different from the case before us as to make them inapplicable, and we therefore charge you that the defendant is liable to the plaintiff for the injuries she has sustained if there be no other reason why she ought not to recover."

Verdict for plaintiff for $1275, and after judgment defendant took this writ, assigning for error the foregoing answers to points and the portion of the charge noted.

Theodore A. Lamb and Davenport & Griffith, for plaintiff in error.--An independent contractor is not the agent or servant of the person by whom he is employed. This contract does not contain any reservation of power such as will take this case out of this general rule and make the city liable for the contractor's negligence: Blake v. Ferris, 1 Selden 48; Reedie v. Northwestern Railroad Co., 4 Exch. 244; Kelly v. The Mayor of New York, 1 Kernan 436. The reservation that the work shall be carried on at such times and places and in such manner as the engineer shall direct, does not make the city liable: Blake v. Ferris, supra; Pack v. Mayor of New York, 4 Selden 222; Kelly v. The Mayor, supra; Reedie v. The Northwestern Railroad Co., supra; Painter v. Pittsburgh, 10 Wright 213; Reed v. Allegheny, 29 P. F. Smith 300; Wray v. Evans, 30 Id. 102.

We find no case where there is any reference to the taking of a bond for the due compliance with the conditions of the contract; yet it is well known, as a matter of fact, that it is always customary for corporations to require them; and therefore, it is to be presumed that the...