McCarrier v. Hollister

• Decision Date: 01 March 1902
• Citation: 15 S.D. 366,89 N.W. 862
• Parties: McCARRIER v. HOLLISTER.
• Court: South Dakota Supreme Court

15 S.D. 366

89 N.W. 862

McCARRIER

v.HOLLISTER.

Supreme Court of South Dakota.

March 1, 1902.

Appeal from circuit court, Minnehaha county.

Action by Owen McCarrier against Fannie E. Hollister. Judgment for plaintiff, and defendant appeals. Affirmed.Davis, Lyon & Gates, for appellant. A. B. Kittredge, for respondent.

HANEY, C. J.

This action was brought to recover for injuries caused by falling into an open ditch on or near premises in the city of Sioux Falls owned by the defendant and occupied by a tenant. For the purpose of connecting her tenement with the city sewer, defendant employed skillful and careful contractors, under an agreement whereby they were to dig the ditch, lay the pipe, make connections, furnish all materials, and do everything necessary to complete the work for $31. The work was begun Friday, August 4, 1899, and completed on the following Monday. The ditch extended from near the center of the street, under the sidewalk, and across defendant's lot to the house. There was no fence where the ditch entered the lot. The walk was on a level with the lawn, and two feet from the line of the lot. The accident occurred between 9 and 10 o'clock Sunday evening. The pipe had then been laid, and the ditch filled from the center of the street to the walk, but was open from the walk to the house. There were no lights or guards to give warning of the danger. In passing along the walk, plaintiff fell into the ditch, and was injured. The jury having returned a verdict for $2,000, defendant appealed from the judgment entered thereon.

The jury having found under proper instructions that ordinary care was not exercised to protect persons passing on the walk at the time of the accident, and that the plaintiff was not guilty of contributory negligence, the only question demanding attentionis whether the contractors, who, without defendant's knowledge, left the excavation unguarded, are alone liable for plaintiff's injuries. It is disclosed by the evidence that the work was done by independent contractors. Respondent concedes the general rule to be that property owners are not responsible for injuries caused by the negligence of competent, independent contractors, but contends that there are certain well-established exceptions to the general rule, and that this case falls within such exceptions. Actions in which the liability of property owners for the negligence of independent contractors has been involved are so numerous that an exhaustive review of them would extend this opinion beyond all reasonable limits. 16 Am. & Eng. Enc. Law (2d Ed.) pp. 187-210; note to Bridge Co. v. Steinbrock (Ohio) 76 Am. St. Rep. 375 (s. c. 55 N. E. 618). The issues presented by this appeal have received thoughtful consideration. While the legal principles involved in this class of litigation are stated by the authorities with measurable clearness and precision, their proper application to the facts of any...