Engler v. City of Seattle

• Decision Date: 08 September 1905
• Citation: 40 Wash. 72,82 P. 136
• Parties: ENGLER v. CITY OF SEATTLE.
• Court: Washington Supreme Court

82 P. 136

40 Wash. 72

ENGLER v. CITY OF SEATTLE.

Supreme Court of Washington

September 8, 1905

Appeal from Superior Court, King County; Geo. C. Hatch, Judge.

Action by Adolph Engler against the city of Seattle. From a judgment for defendant, plaintiff appeals. Affirmed.

Benson & Hall and Waterman & Hendron, for appellant.

Wm Parmerlee and Scott Calhoun, for respondent.

CROW J.

Action by appellant, Adolph Engler, against the city of Seattle respondent, to recover damages for personal injuries sustained. In his amended complaint appellant alleged: That on September 14, 1901, respondent entered into a written contract with T. Ryan & Co., a copartnership, by the terms of which said Ryan & Co. were to construct a cement sidewalk and certain other improvements on Second avenue in said city. That two certain general stipulations contained in the specifications attached to said contract, and made a part thereof, provided as follows: 'Plans and superintendence This improvement shall be under the superintendence of the city engineer, and any orders or directions given by him or his duly-appointed representative shall be respected and immediately and strictly obeyed by the contractor, or any overseer in charge of the work. It is hereby understood that wherever the term 'engineer' or 'city engineer' are mentioned in these specifications, it shall mean himself or any representative duly appointed by him.' 'General stipulations: Whenever the contractor is not present on the work, orders will be given to the superintendent or overseer who may have immediate charge thereof, and shall by them be received and strictly obeyed and if any person employed on the work shall refuse of neglect to obey the directions of the city engineer or board of public works in anything relating to the work, or shall appear to be incompetent, disorderly, or unfaithful, he shall, upon the requisition of the engineer, be at once discharged, and not again employed upon any part of the work.' That appellant, as a laborer, was employed by and working for Ryan & Co. in the performance of said contract. That one John James, a duly-authorized representative of the city engineer, on November 16, 1901, while appellant was digging sand to be used by said Ryan & Co. in said work, instructed appellant to dig a better quality of sand in another location, where he would be under the roots of a massive stump, about six feet in diameter, and extending 3 feet over the place where he so directed appellant to work. That said stump was in constant danger of falling. That appellant did not know of said danger. That while he was working where so directed, said stump did fall upon him, causing the injuries complained of. It appears that the sandpit where appellant was working and injured was not on or at Second avenue, and on Mercer street, an ungraded street, where, with the consent of the city, said Ryan & Co. were obtaining sand to be used by them in said improvements. Upon trial before a jury the trial court granted a nonsuit, and entered judgment for respondent. From said judgment this appeal has been taken.

The theory upon which appellant bases his right of recovery is that the relation of master and servant existed between said city and himself--a relation imposing upon the city the duty to furnish him a reasonably safe place to work. On the other hand, respondent contends that Ryan & Co. were independent contractors; that appellant was their employé, hired and compensated by them, and that by reason thereof no relation of master and servant existed between respondent and appellant. Insisting that said relation did exist, appellant contends that the city engineer had the right to superintend the work, to direct and discharge employés, and therefore that Ryan & Co. were not independent contractors, within the rule exempting employers from liability for injury caused by negligence in the prosecution of the work; and cites City of Seattle v. Buzby, 2 Wash. T. 25, 3 P. 180, and Cooper v. City of Seattle, 16 Wash. 462, 47 P. 887, 58 Am. St. Rep. 46. Neither of said cases support appellant's contention. In Seattle v. Buzby the question here involved was not discussed. In both cases, property of third parties, not em ployees of the alleged independent contractors, had been injured as the result of negligence in making certain public improvements It is true that in Cooper v. Seattle the question of independent contractor was discussed to some extent; but such discussion was not necessary to reach the final judgment, which was correct and just. No fault can be found with said final judgment, but the case itself has no bearing here. Appellant was himself engaged in the work under a contract with Ryan & Co., and while as to third persons who might be injured or whose property might be damaged by reason of that work he became the servant of the city by operation of law, yet as between the city and himself he was solely the servant of Ryan & Co., and not of the city. The liability of the city of Seattle to a third party in both of said cases existed irrespective of the question of whether or not the work was being done by an independent contractor. All that is decided in Cooper v. Seattle is that there was no independent contractor, who sustained such a relation to the work as would release the city, under the general rule, from liability to a third person, not an employé, whose property was injured by reason of failure of the city to see that public work was performed without negligence. The learned judge who wrote the opinion cited in support of his position City of Seattle v. Buzby, supra, which we have already discussed, and also Fink v. City of St. Louis, 71 Mo. 52, and City of Cincinnati v. Stone et al., 5 Ohio St. 38. In Fink v. City of St. Louis the court uses this language: 'The circuit court which tried the case, therefore, held that whether the city engineer did in fact superintend the work or not, it was his duty under the ordinance and charter to do so, and the city was responsible for any negligence occasioning injury to the proprietors of adjoining lots; and we think this view of the case was right, and in harmony with the authorities. The action is not for damages occasioned by the tunnel, but for an excavation for a sewer, which could only be done by consent of the city, and under supervision of the city engineer. The plans for the work were submitted to the city and approved, and whether its officers supervised its execution or not was of no consequence, since it was their duty to have done so--a duty imposed by the charter and recognized in the ordinance, and with which the state had no concern, and did not attempt to interfere.' In City of Cincinnati v. Stone et al., the court says: 'In addition to the fact in this case that the city of Cincinnati retained the entire control and direction over the work under the contract, it was a public duty enjoined on the city to remove all nuisances from the streets of the city, and to make no contracts for the improvement of the streets by which any nuisance would be created on the premises of the adjacent proprietors. The city was therefore clearly liable for the injury sustained by the negligence of the contractor or of any of his subordinates in the performance of the work.' These quotations show the theory on which Cooper v. Seattle was really decided. In Reilly v. Chicago & N.W. Ry. Co., 98 N.W. 465, the Supreme Court of Iowa, in a case involving the question of independent contractor, speaking of the duty of a master to furnish the servant a safe place in which to work, says: 'The duty of furnishing plaintiff a safe place to work, and exercising care and supervision to maintain such condition of safety, rested upon the employer alone, and, unless it be under extraordinary circumstances, which do not here obtain, that...