City of Gary v. Bontrager Const. Co.
| Decision Date | 15 March 1943 |
| Docket Number | 16943. |
| Citation | 47 N.E.2d 182,113 Ind.App. 151 |
| Parties | CITY OF GARY v. BONTRAGER CONST. CO. et al. |
| Court | Indiana Appellate Court |
[Copyrighted Material Omitted]
Ellis C. Bush and E. J. Wiltrout, both of Gary, for appellant.
Call & Call, of Gary, for appellee.
On the 5th day of August, 1940, the appellee Florence Renehan filed complaint in the Lake Superior Court against the appellant City of Gary and the appellee Bontrager Construction Company seeking to recover damages for personal injuries suffered in a collision between an automobile, which she was driving along 7th Avenue in said city, and a manhole in said street which was constructed so as to protrude above the surface thereof to an extent that it constituted a hazard to vehicular traffic. The cause was venued to the Porter Superior Court where it was submitted to a jury for trial. After the appellee Renehan had rested her case in chief appellant moved for a directed verdict which was overruled and the trial proceeded to a verdict for said appellee against the appellant in the sum of $5,000, and that she take nothing from the appellee Bontrager Construction Company. Over appellant's motion for a new trial judgment was entered in conformity to said verdict and this appeal perfected. The errors assigned and not specifically waived call in question the court's refusal to direct a verdict for appellant and the overruling of its motion for a new trial.
The complaint upon which the case was tried alleges in substance that 7th Avenue is a public highway in the city of Gary, a municipal corporation organized under laws of the state of Indiana. That, on September 13, 1939, said city entered into a written contract with the Bontrager Construction Company, an Indiana corporation, for the construction of a sewer and appurtenant manholes in and along said 7th Avenue. That, in the performance of said contract, said Bontrager Construction Company carelessly and negligently built a certain manhole in such a manner that it protruded above the surface of the street causing a dangerous obstruction to vehicular traffic thereon. That, while said street remained in the dangerous condition above described, the city of Gary and the contractor, Bontrager Construction Company, each failed and neglected to close the same to traffic, and each failed to install and maintain a barrier or guard of any description around said manhole or place lights or other signals thereon to warn travelers of its presence in the highway. That, on January 28, 1940, the appellee Florence Renehan finding 7th Avenue open to traffic drove her automobile in a careful and prudent manner along and over the same a distance of several blocks when she collided with said protruding manhole and was severely injured as a result thereof.
As we view it, there are three charges of actionable negligence in appellee's complaint: (1) The construction of the manhole in controversy in such a manner that it constituted a dangerous obstruction in the street. This alleged negligence is charged solely against the appellee Bontrager Construction Company. (2) The failure of both the city of Gary and Bontrager Construction Company to close the street to traffic in view of said dangerous obstruction. And (3) the failure of each to properly guard said manhole and warn travelers of its presence by lights or other proper signaling devices. In legal effect, the jury's verdict was a finding that the appellee Bontrager Construction Company was not negligent in any of these particulars and that the appellant, not being charged with negligence in the first particular, was negligent as charged in at least one of the latter two.
The appellant contends that this is a situation which the law does not tolerate and counsel argues that, the jury having found that the manhole in controversy was not constructed in such a manner as to constitute a dangerous obstruction, there could be no breach of duty on the part of the appellant in failing to close a street which was safe for travel or guard against a condition that was not dangerous. To this we cannot subscribe, ingenious as it appears to be. The undisputed evidence discloses that at the time of the accident the street had not yet been paved and that the manhole extended above the surface to accommodate a hard top of some character which could not be laid in cold weather. It was built according to specifications and it was necessary that it extend above the unfinished surface of the street. It logically follows that the jury found that there was no negligence in the manner in which said manhole was constructed and that it did not constitute a dangerous obstruction unless the street were left open to travel and the manhole left unguarded by proper barriers, lights or other warning devices. Having found that failure to close the street or properly guard the obstruction was the actionable negligence in the case and that such fault was the appellant's and not that of the Bontrager Construction Company, the verdict in question logically followed.
Although the contract between the appellant and appellee Bontrager Construction Company is not in evidence, it appears from the uncontradicted testimony of the civil engineer of the city of Gary that the appellant in no way directed the method to be employed in the performance of said contract. It did not control or direct the operations of the contractor and was interested only that the finished job was in accordance with the plans and specifications, which were a part of the contract. From this testimony we believe we are justified in holding that the relationship between the appellant and the appellee Bontrager Construction Company was that of an employer and independent contractor. The definition of the term "independent contractor" most frequently quoted by authorities, is to the effect that an independent contractor is one who, in exercising an independent employment, contracts to do certain work for another according to his own methods and without being subject to the control of his employer, except as to the product or result of his work. Casement v. Brown, 1893, 148 U.S. 615, 13 S.Ct. 672, 37 L.Ed. 582; Kreipke v. Commissioner of Internal Revenue, 1929, 8 Cir., 32 F.2d 594. This definition seems to fit the situation in hand and definitely characterizes the appellant as an employer and the appellee Bontrager Construction Company as an independent contractor.
As a general rule independent contractors are not within the purview of the substantive law governing the relations of "master and servant," "employer and employee" or "principal and agent," and authorities cited by counsel involving those relations we do not consider applicable here. Therefore, the question before us must be decided solely upon the premise that, at the time of the accident in controversy, the law governing the relationship of employer and independent contractor is controlling.
The appellant rests its contention that the verdict of the jury is not sustained by sufficient evidence and is contrary to law upon the proposition that when an independent contractor performs work for a city in a public street he owes a duty, both to the public and the city, to guard dangerous obstructions in the street made in the course of the performance of the contract; and, for a breach of this duty, both the city and contractor are equally liable to a traveler who without fault is injured thereby, but the discharge of the contractor from such liability necessarily relieves the city therefrom. That, the jury, having absolved the appellee Bontrager Construction Company of all responsibility for the accident in controversy, the judgment against the appellant must fall.
This proposition finds some support in City of Anderson v Fleming, 1903, 160 Ind. 597, 67 N.E. 443, 66 L.R.A. 119, and Fleming v. City of Anderson, 1905, 39 Ind.App. 343, 76 N.E. 266. In the first of the above cases Fleming brought suit against the city of Anderson to recover damages for personal injury sustained by stepping into an excavation made by an independent contractor in one of the streets of said city. It appears that she had theretofore sued the contractor for the same injury and had been unsuccessful. A plea of res adjudicata was interposed setting out such former adjudication, and a demurrer thereto was sustained. The appeal brought in question the holding of the lower court to the effect that a judgment for the contractor was not a bar to a subsequent suit against the city for the same injuries. In this case there was a provision in the contract that proper precaution should be taken by the contractor to protect the public from injury, and, by reason thereof, the Supreme Court held that, as between him and the city, the primary liability to respond in damages for failure to guard the excavation rested on the contractor. Therefore, if the city, being equally liable for the injuries complained of, were called upon to respond in damages, it would be subrogated to the rights of Fleming and could recoup from the contractor, but the judgment on the merits in the contractor's favor in Fleming's action against him, conclusively adjudged that he was not liable to Fleming or any person claiming under her for the same cause of action. The second Fleming case above cited announces the same principle of law but judgment was affirmed for the reason that between the first and second trials the appellant had amended her complaint by pleading a different cause of action growing out of the same facts, which was barred by statute of limitations. In Van Fleet, Former Adjudication, Sec. 572, we find the following rule enunciated: ...
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