Pine Bluff Natural Gas Co. v. Senyard

• Decision Date: 12 May 1913
• Citation: 158 S.W. 1091,108 Ark. 229
• Parties: PINE BLUFF NATURAL GAS COMPANY v. SENYARD
• Court: Arkansas Supreme Court

158 S.W. 1091

108 Ark. 229

PINE BLUFF NATURAL GAS COMPANY v. SENYARD

Supreme Court of Arkansas

May 12, 1913

Appeal from Jefferson Circuit Court; Antonio B. Grace, Judge affirmed.

STATEMENT BY THE COURT.

Mildred Senyard brought this action against the Pine Bluff Natural Gas Company to recover damages for personal injuries received by her while driving along Walnut Street in the city of Pine Bluff at about 8:30 o'clock P. M., and which she alleged were caused by her buggy being overturned by running upon a pile of gravel placed by the defendant in the street. The circumstances attending the injury are as follows:

The city of Pine Bluff granted to the defendant a franchise allowing it the privilege of laying pipes, mains and other appliances in the streets of the city for the purpose of conveying and supplying natural gas to consumers thereof. The sections of the ordinance granting the franchise which are relevant to the present case are as follows:

"Section 1. That H. S. Grayson, hereinafter designated as the grantee be and is hereby granted the privilege and vested with the right to use the streets, lanes, avenues, alleys, commons bridges and other public grounds and places within the corporate limits of the city of Pine Bluff, Arkansas, for the period of thirty (30) years from the date of passage of this ordinance, for the purpose of laying, maintaining, repairing reclaiming and removing pipes, mains and other necessary appliances to be used for carrying and conveying natural gas for public and private use in buildings, manufacturing establishments and otherwise within the said city of Pine Bluff, Arkansas, together with the right to dig and excavate in all or any of the said streets, lanes, avenues, alleys and other public grounds and places for the purpose of laying and constructing such mains, pipes and other appliances, and removing the same, required to convey and conduct said gas to consumers upon the following conditions:

"Section 3. In the work of laying, repairing, reclaiming and removing said pipes and appliances, the said grantee shall not unnecessarily obstruct or interfere with the use and occupancy of any streets, lanes, avenues, commons, public grounds or places, and in no wise injure, interfere with or change any existing arrangements for gas, water pipes, drains, sewers, ditches or other public or private works of said town.

"Section 4. Said grantee shall relay and replace with due diligence any and all pavements, curbs, gutters, streets, avenues, alleys and other public grounds and places disturbed by him in the same manner and like conditions as the same may have been before excavating, leaving the surface of all unpaved streets smooth and level; provided, that nothing contained in this section shall authorize any act in violation of any ordinance now in effect or to be hereafter passed by the council of the said city of Pine Bluff, nor prevent said city from replacing any such pavements by its agents, at the expense of said grantee. Nor shall anything contained in this section be construed on behalf of said city of Pine Bluff as waiving any right now possessed or hereafter to be possessed by said city to exercise full control over all streets, avenues, alleys or other public grounds.

"Section 5. The said grantee shall preserve and keep the city of Pine Bluff, Arkansas, safe, free and harmless from any damage, costs or expenses that may be incurred or happen to persons or property by reason or on account of anything done by said grantee under the provisions of this ordinance, and shall defend, at his own proper costs, any suits brought against the city of Pine Bluff, Arkansas, by persons or corporations claiming damages or injury on account of the creation and maintenance of the natural gas plant of said grantee."

The street on which the injury occurred was paved with wooden blocks. For the purpose of laying its mains, the gas company tore up the street, and dug a trench running north and south on Walnut Street. The trench was dug about ten feet from the east curb and was about four feet deep and ten inches wide. The street was forty feet wide from curb to curb. The blocks taken up were piled between the trench and the east curb of the street. After the gas company had laid its mains, it replaced in the trench or ditch the dirt it had excavated and firmly tamped it. The gas company had entered into a contract with Elson Hale to replace the pavement. This work was accomplished by first spreading a concrete foundation several inches thick over the refilled trench, and then laying the blocks on the concrete foundation. The concrete foundation was made of gravel mixed with cement. To successfully do this, it was necessary to bring the gravel and cement to that part of the street that was being repaired so that they might be mixed as they were spread upon the surface of the street. Preparatory to doing this work, Hale hauled about a wagon load of gravel and deposited it on the west side of the street next to the curb. He placed some wheelbarrows, which were to be used in the work, on top of the pile of gravel. The pile of gravel was allowed to remain over night without any light or other precaution taken to warn the travelling public that it was there. The gas company placed lights about forty or fifty feet apart along the line of the refilled trench. The gravel was placed in the street about 4 o'clock P. M., on Saturday, the 11th day of February, 1912. About 8:30 o'clock in the evening Mrs. Senyard, the plaintiff, was driving along Walnut Street in a buggy, and when she was between Third and Fourth streets she drove into the pile of gravel and was thrown from her buggy and severely injured.

The evidence for the plaintiff tends to show that it was too dark to see the obstruction, and one of her witnesses stated that upon examination made afterwards, he found that the gravel extended about five feet into the street and that there was hardly room for a vehicle to pass between it and the ditch on the other side. The street in question had a great deal of traffic over it.

There was a verdict and judgment for the plaintiff and the defendant has appealed.

Judgment affirmed.

Coleman & Gantt and Moore, Smith & Moore, for appellant.

Hale was an independent contractor for whose acts appellant was not liable. 32 Ark. L. Rep. 771; 77 Ark. 551; 54 Id. 427; 53 Id. 503; 26 Cyc. 1553; 88 N.W. 741; 49 N.W. 822; 78 P. 337; 39 La.Ann. 551; 49 Am. Rep. 113; 98 N.W. 573; 43 S.E. 562; Dillon on Mun. Corp. (5 ed.), § 1723.

A. H. Rowell, for appellee.

A corporation owing a public duty can not delegate its duties to another and escape liability for negligence. 39 So. 142; 49 N.W. 822; 78 P. 337; 16 Wall. 576; 88 N.W. 741; 71 Am. Dec. 285; 63 S.E. 367; 72 A. 1069; 20 N.E. 33; 14 L. R. A. 398; 34 S.W. 590; 83 U.S. 566; 27 L. R. A. 590; 51 Am. Rep. 269; 45 N.E. 668; 153 S.W. 838; 87 S.W. 297; 53 A. 807; 150 S.W. 77; 108 P. 509; 48 N.E. 66; 87 Ill.App. 40; 26 Cyc. 1562; 140 S.W. 1197; 55 N.E. 618; 56 Id. 797; 81 Ark. 199; 77 Id. 553; 54 Id. 131; 152 S.W. 148.

HART J. MCCULLOCH, C. J. and WOOD, J. dissent. Mr. Justice WOOD concurs in the views here expressed.

OPINION

HART, J., (after stating the facts).

To reverse the judgment, counsel for the defendant invoke the general rule that the employer is not responsible for the negligence of an independent contractor. They concede that there are exceptions to the general rule, and that one of them is that where a person causing something to be done, the doing of which casts on him a public duty, he can not escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. They do contend, however, that the piling of the gravel in the street without a light was purely collateral to the work contracted to be done, and was entirely the result of the wrongful acts of the contractor, Hale, and therefore he alone is liable. We can not agree with their contention. The city council has entire control of the streets of the city and it was its duty to the public to keep them unobstructed and safe for passage in the ordinary modes of travel.

In recognition of its duty to the public, the city council provided in the ordinance that the defendant, in the work of laying and repairing its pipes and appliances, should not unnecessarily obstruct or interfere with the use of the streets of the city. The defendant when it began the work of tearing up the streets of the city for the purpose of laying its gas mains assumed all the obligations of the city to the public, and it became its duty to exercise ordinary or reasonable care in the laying and repairing of its mains so as to prevent such work from obstructing the street or endangering those using it. In Chicago City v. Robbins, 67 U.S. 418, 2 Black (U.S.) 418, 17 L.Ed. 298, and again reported under the style of Robbins v. City of Chicago, 71 U.S. 657, 4 Wall. (U.S.) 657, 18 L.Ed. 427, Robbins was held liable for damages by a pedestrian upon the streets of Chicago falling into an area which his contractor had made before a building he was erecting in that city. In the first opinion, the court said: "Robbins' duty was absolute to see that the area dug under his direction and for his benefit should be safely and securely guarded and, failing to do so, his liability attached and the jury should have been told so."

In the opinion on the second appeal, it is said: "The import of the decision of this court in reversing the former judgment of the circuit court, and remanding the cause for a new trial, was that the party contracting for the work was liable in a case like the present, where the work to be done necessarily constituted an obstruction or defect in the street or highway which...