City Of Richmond v. Sitterding

• Decision Date: 12 March 1903
• Citation: 43 S.E. 562,101 Va. 354
• Parties: CITY OF RICHMOND. v. SITTERDING.
• Court: Virginia Supreme Court

43 S.E. 562

101 Va. 354

CITY OF RICHMOND.

v.SITTERDING.

Supreme Court of Appeals of Virginia.

March 12, 1903.

negligence — personal injuries — joint tort feasors — res ad judicata — independent contractors—inherently dangerous enterprise.

1. Where a city and an individual were sued jointly for personal injuries alleged to have been caused by the negligence of both defend ants, and judgment went for the individual defendant on his plea of limitations, a judgment against the city could not be res judicata of the individual's negligence, or of his liability to the city in a subsequent action by the city to recover the amount of the judgment against the city.

2. Where a carpenter engaged in building a house on his own lot contracted with a firm of brick masons to do all the brickwork, such firm employing the necessary labor, the brick masons were independent contractors, and the builder was not liable for injuries resulting from an obstruction placed in the street by them.

3. The construction of the brickwork of a house abutting on a street is not an enterprise inherently dangerous to the public passing along the street, so as to make the owner of the house liable for injuries caused to a pedestrian by an obstruction placed in the street by an independent contractor doing the brickwork.

Error to law and equity court of city of Richmond.

Action by the city of Richmond against Fritz Sitterding. From a judgment for defendant, plaintiff brings error. Affirmed.

Henry R. Pollard, for plaintiff in error.

Sol. L. Bloomberg and H. S. Bloomberg, for defendant in error.

HARRISON, J. It appears from the record that one John J. Leaker sustained personal injuries by falling over a plank negligently extended over the sidewalk on Leigh street, in the city of Richmond, by laborers engaged in building four houses for one Fritz Sitterding. Suit was brought by Leaker against the city, and subsequently by an amended declaration Sitterding was made a party defendant; the amended declaration charging that the city and Sitterding were jointly liable in damages to Leaker for the injuries suffered by him. The result of this suit was a judgment in favor of Sitterding upon the plea of the statute of limitations, he having been brought into the suit more than one year after the date of the accident, and a judgment against the city for $1,000. The city of Richmond, having paid this judgment, amounting, principal, interest, and cost, to the sum of $1,079.24, brings the suit now before us to recover over against Fritz Sitterding the sum so paid by it, alleging that it was by bis wrongful and negligent act that the sidewalk was rendered unsafe, thereby causing the injury for which Leaker had recovered his judgment against the city.

The whole matter of law and fact having been submitted to the court, judgment was rendered in favor of the defendant Sitterding. This action of the lower court we are now asked to review.

It appears from the evidence that Fritz Sitterding, a general builder and contractor, was erecting for himself four buildings on a lot owned by him at the corner of Leigh and Fourth streets, in the city of Richmond, and that he did all of the carpenter work by his employes. It further appears that the firm of Jones & Green were general con-tractors and bricklayers, and as such, under contract In writing, undertook to do and did do all of the brickwork on said houses; that Jones & Green were competent contractors; that they employed and paid all labor necessary for the fulfillment of their contract, and exercised entire supervision over the same and over their employes. It further appears that a plank walkway at the end of the mortar bed in the driveway of the street, across the gutter, and extending some distance into or over the sidewalk, and above the level thereof, was so placed by the brick contractors or their employes for the use of their laborers in carrying brick and mortar into the buildings.

It is contended on behalf of plaintiff in error that the defendant Sitterding, having had notice of the pendency of the suit of "Leaker v. City of Richmond, " and opportunity to make his defense in that suit, and having failed to do so, is now estopped from showing that It was not through his fault that the accident happened.

It is further insisted that the question of Sitterding's ultimate liability was res adju-dicata by reason of the judgment in the Leaker case.

Both these contentions are without merit. This is not a suit between the same parties, or their privies, that were litigants in the case of Leaker v. City of Richmond. So far as Sitterding is concerned, that case...