Argued
March 7, 1894
Appeal, No. 167, Jan. T., 1893, by plaintiff, from judgment
of C.P. Northampton Co., Aug. T., 1891, No. 12, on verdict
for defendant. Affirmed.
Trespass
for injuries caused to plaintiff's property by a break in
a sewer alleged to have been caused by the negligent manner
of its construction by defendants. Before REEDER, J.
At the
trial, it appeared that, on Jan. 2, 1891, the street in front
of plaintiff's property caved in, and a large quantity of
water from a sewer and water main saturated the foundation of
plaintiff's property, causing serious injury to it. The
sewer had been built by defendants and it was claimed that
the injury had been caused by the negligent manner of its
construction. Defendants claimed that they were not liable
because the sewer in all its details had been constructed
under the control and direction of the chief engineer of the
city of Easton.
Defendants
by their contract, given in evidence, covenanted "to
furnish and deliver all the materials and to do and perform
all the work and labor required to be furnished and
delivered, done and performed in and about the construction
of certain main and lateral sewers, as authorized by
ordinance approved the 22d day of February, A.D. 1890, in
strict and entire conformity with the plans on file in the
office of the city engineer, and in strict and entire
conformity with the specifications."
They
further covenanted "that all said materials shall be of
the best of their several kinds and qualities, and that all
of said work and labor shall be done and performed in the
best and most workmanlike manner; and that all of said
materials, work and labor shall be subject to the inspection
and approval of the city engineer of the city of Easton, and
in case any of said materials and work shall be rejected by
the said engineer, as defective or unsuitable, then the said
materials shall be removed and replaced with other materials
and the said work shall be taken down and done anew to the
satisfaction and approval of said engineer, at the cost and
expense of the said party of the second part."
The
specifications were among others as follows:
"6.
All excavation shall be by open cut from the surface. No
tunneling will be allowed, except when written permission is
obtained from the engineer.
"20.
The contractor shall have charge of and be responsible for
the entire line of sewers for the construction of which he
has contracted, until their completion and acceptance.
"28.
The contractor shall, at his own expense, shore up, protect
and make good, as may be necessary, all buildings, walls
fences or other property injured, or liable to be injured
during the progress of the work; and the contractor will be
held responsible for all damage which may happen to
neighboring property from neglect of this precaution, or from
any other cause connected with the prosecution of the work.
"29.
All pipes shall be laid at a certain depth below a grade line
stretched near the surface at points given by the engineer.
"37.
The T branches, Ys, lampholes and manholes shall be placed at
points indicated by the engineer.
"38.
Special pieces, such as Y branches, curves, Ts, etc., shall
be made according to drawings furnished by the engineer.
"47.
Brick sewers shall be constructed according to the plans on
file at the city engineer's office, and according to the
grades and lines given by the engineer. . . . The sides of
the trench shall, at the contractor's expense, be
supported by the proper timber-work, when required by the
engineer, to prevent caving.
"49.
After the completion of the brick-work, earth shall be
carefully filled in and tamped around the sewer in horizontal
layers of not over six inches in thickness, until the filling
reaches a height of one foot above the top of the sewer, when
the filling shall be carried up in horizontal layers of not
over nine inches in thickness, each layer being thoroughly
tamped with pavers' rammers, to the surface of the
street, or within such distance of the surface as the
engineer shall direct. The earth shall be kept sufficiently
moist to permit it to be properly compacted, and the surface
of the street shall be left in as good condition, by the
contractor, as it was previous to the excavation of the
trench.
"50.
Whenever ordered by the engineer, in writing, the contractor
shall excavate to such a depth below the grade as the
engineer may direct, and the excavation shall be brought to
grade with such material as shall be ordered by the engineer,
the extra work to be paid for upon the estimate of the
engineer.
"51.
Catch basins or inlets, with connecting shoots, are to be
built where shown on the plan of the work, or at such points
as the engineer shall, during the progress of the work,
determine and direct. . . .
"62. The engineer shall have the right to make
alterations of the line, plan, form or quantity of the work
herein contemplated, either before or after the commencement
of the work. . . .
"63.
If any person employed by the contractor on the work shall
appear to the engineer to be incompetent or disorderly, he
shall, on the requisition of the latter, be immediately
discharged and such person shall not be again employed upon
the work without the permission of the said engineer.
"71.
And the said contractor hereby expressly binds himself to
indemnify and save harmless the city of Easton from all suits
or actions of every name and description brought against the
said city for, or on account of, any injuries or damages
received or sustained by any party or parties by or from the
said party of the second part or his servants or agents in
the construction of said work, or by or in consequence of any
negligence in guarding the same, or any improper materials
used in its construction, or by or on account of any act or
omission of the said party of the second part or his agents.
"73.
In consideration of the completion by the said party of the
second part, of all work embraced in this contract, in
conformity with the specifications and stipulations herein
contained and in strict accordance with the instructions of
the engineer, the city of Easton, party of the first part,
hereby agrees to pay to the said party of the second part the
prices named in the proposal, which is hereto annexed, and
which is hereby made a part of this contract."
Under
objection and exception, the court permitted A. J. Cooper,
the city engineer, to testify: "Q. Now, Mr. Cooper,
please state whether you gave any instructions to Smith &
Minnahan, who had charge of this construction, as to how the
earth should be filled in beginning at a point three feet
above the archway of the brick sewer -- how were they to put
up the earth, and what was done, at the Presbyterian Church?
A. Do you want the special instructions right at the Church?
Q. How were they to put in the earth, with reference to
tamping and puddling -- putting in the water, or dumping the
earth? A. My instructions were general all over the street.
That covered the Presbyterian Church. My instructions there
were that they should put in the ground and thoroughly
puddle. Q. Were your instructions that they should tamp it at
a point three feet above the archway of the sewer? A. I told
them they should puddle it; they couldn't tamp it. They
should puddle it. I told them they could puddle it. Q. You
have already stated what directions you gave about the
tamping up to a point three feet above the brick archway. Did
you give directions, and, if so, what were they, about the
rest of the work, from there on up? A. From that point up it
was to be thoroughly puddled to the surface of the
street." [20]
Under
objection and exception, James Smith, one of the defendants,
testified: "Q. State whether or not you received any
directions from the city engineer as to the balance of the
work after you reached this point three feet above the sewer?
A. The whole work was described. The filling afterwards was
done by the direction of the city engineer. Q. From the point
up three feet above the archway of the sewer? A. We were
authorized to fill that as the ground was excavated by the
buckets, and keeping it wet all the time." [25]
The
court charged in part as follows:
"[If
you come to the conclusion that it was the defendants'
negligence, then, before you can find a verdict in favor of
the plaintiff, you will have to proceed to another
consideration, was what they did negligently, authorized by
the contract? -- and it is only in this consideration that
the contract becomes of any importance at all in determining
your verdict. That is to say, although the work might have
been negligently done by these defendants, if the work was
done in accordance with the terms of the contract, in
accordance with the directions of those who had a right to
direct them, then, although the work may have been
negligently done, yet there can be no liability on the part
of these defendants.]
"[In
order to determine this, you will have to consider the terms
of the contract -- what was the negligence of the defendants.
That is the first question of fact which you will have to
determine. Was it the way in which the sheet-piling was left
in the sewer? If it was, then you will have to turn to the
contract to see whether they were authorized to leave the
sheetpiling in the sewer. The contract specifies that
'the sides of the trench shall, at the contractor's
expense, be supported by a proper timber-work, when required
by the engineer, to prevent caving.' Therefore if they
were required by the engineer to put in this timber-work to
prevent caving, and if timber-work so put in was put...
