Collensworth v. City of New Whatcom

• Decision Date: 18 December 1896
• Citation: 16 Wash. 224,47 P. 439
• Parties: COLLENSWORTH v. CITY OF NEW WHATCOM.
• Court: Washington Supreme Court

47 P. 439

16 Wash. 224

COLLENSWORTH v. CITY OF NEW WHATCOM.

Supreme Court of Washington

December 18, 1896

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Action by Silas F. Collensworth against the city of New Whatcom. Judgment for plaintiff, and defendant appeals. Affirmed.

D. W Freeman and H. A. Fairchild, for appellant.

Newman & Howard, for respondent.

GORDON, J.

The respondent sued to recover damages for personal injuries sustained, resulting from the alleged negligence of the servants and agents of the appellant city. The complaint alleges that the injury was caused by the servants and employés of the city carelessly and negligently firing and exploding a blast of giant powder, thereby causing a large rock to be thrown against the person of the plaintiff. That at the time of the injury the agents and employés of the city were engaged in excavating a trench or ditch for the construction and extension of its system of waterworks, and that the "blast" in question was fired and exploded in the prosecution and furtherance of the work of laying and extending such system.

The answer was a general denial. From a judgment in plaintiff's favor for the sum of $7,250, the city has appealed.

It appears from the record that in the summer of 1894 the city authorities of New Whatcom, being desirous of extending its system of waterworks, called upon its engineer to furnish a report showing the cost and expense of a proposed extension. Pursuant thereto the city engineer made a report showing among other things, that the cost and expense of digging the trench for the pipe, and filling and covering the same, would amount to about the sum of $3,500. Thereupon the city council passed the following resolution: "On motion, the contract for constructing the tunnel for the water main at the lake was awarded to Quinn et al., and the city engineer was instructed to employ the necessary help and to proceed at once to dig the ditch for the water main." Upon the authority of this resolution, the engineer laid out the work, staked it off, employed and discharged all of the labor, prepared monthly pay rolls and signed and filed them with the city clerk, and purchased explosives and other material used on the work; and it was while engaged in the prosecution of this work that the injury occurred which resulted in the present action. The appellant is a city of the third class, and section 130 of the general incorporating act, being section 649, 1 Hill's Code provides: "In the erection, improvement, and repair of all public buildings and works, *** when the expenditure required for the same exceeds the sum of five hundred dollars, the same shall be done by contract, and shall be let to the lowest responsible bidder, after due notice, under such regulations as may be prescribed by ordinance." It is contended in this case that the work of digging and filling the trench was at a cost greatly exceeding $500, and that the engineer's estimate of the cost, which estimate was furnished prior to the city's engaging in the work, showed that its cost would exceed $500; and it is further contended that the resolution of the council above set out, and the undertaking of the city to perform the work of digging the ditch and covering the main by direct employment of day labor, under the supervision of its engineer, instead of letting the work to an independent contractor, was ultra vires. This contention proceeds upon the theory that if section 649, supra, had been followed, and the work let to an independent contractor, the city would not have been liable for any negligence arising in the prosecution of the work, and that the remedy for an injury of the character of which the plaintiff here complains would be confined to the person causing the injury and such independent contractor. This, in substance, is the position assumed by the city, and upon which it relies to defeat the action, and we think it unnecessary to notice in detail the various forms in which this main question is presented in the able and exhaustive brief of counsel for the appellant.

As a...