Ridgeway v. Downing Co.

• Decision Date: 27 January 1900
• Citation: 34 S.E. 1028,109 Ga. 591
• Parties: RIDGEWAY v. DOWNING CO. et al.
• Court: Georgia Supreme Court

34 S.E. 1028

109 Ga. 591

RIDGEWAY v. DOWNING CO. et al.

Supreme Court of Georgia

January 27, 1900

Syllabus by the Court.

Where the owner of a vacant city lot, who for many years has suffered the public to use a thoroughfare over the same employs an independent contractor to construct a building thereon according to certain specifications, including excavations for piling for the foundation, and the contractor digs a trench for such purpose across the thoroughfare, the owner is not liable for a personal injury sustained by one who falls into the trench by reason of its unguarded condition.

Error from city court of Brunswick; S.C. Atkinson, Judge.

Action by W. W. Ridgeway against the Downing Company and another. Judgment for defendant the Downing Company. Plaintiff brings error. Affirmed.

Garrard Meldrim & Newman and Johnson & Krauss, for plaintiff in error.

Goodyear & Kay, for defendants in error.

FISH J.

It appears from the record in this case that the Downing Company, a corporation, owned a vacant lot near the water front in the city of Brunswick. Pedestrians and vehicles, in going to and from a certain boat landing or dock, had for several years passed over this lot, and in this way made a well-defined roadway or thoroughfare across it. The Downing Company employed Leonard, a contracter, to erect for it a building upon this lot, according to certain specifications including excavations or trenches for the piling for the foundation of the building. Leonard dug a trench for piling across this thoroughfare, and left it open, unguarded on the side next to the boat landing, and without danger signals to warn the public of its existence. The plaintiff, on his way up town, at night, from the boat landing, while walking in this roadway across the lot, fell into the excavation, and sustained personal injuries. He sued the Downing Company and Leonard for damages. The Downing Company pleaded that the excavation into which the plaintiff alleged he fell was made by Leonard, who was an independent contractor, and the same was wholly and absolutely in his charge, and the Downing Company, other than owning the real estate upon which the excavation was made, "had no part in the work of making said excavation, nor any legal liability for any acts of said Leonard, nor were they charged with any duty whatever to anybody to put out lights, or give notice to the public of the existence of such excavation." Upon the trial of the case, the jury found a verdict in favor of the plaintiff against Leonard, and the court directed a verdict in favor of the Downing Company. The plaintiff made a motion for a new trial, which was overruled, and he excepted.

Although the contract between the Downing Company and Leonard provided that "the contractor, under the direction and to the satisfaction of A. V. Wood, superintendent, acting, for the purpose of this contract, as agent of said owner, shall and will provide all the material, and perform all the work mentioned in the specifications, and shown on the drawings prepared by the said architect," yet, in the light of the entire instrument embracing the contract, its true intent and meaning, as a whole, were that the superintendent was merely to "see that the contractor [carried] out his agreement," and had the power of supervision solely with relation to the result to be obtained, and not as to the means by which it was to be accomplished, or as to the time and manner of executing the work. It is not contended by the plaintiff that this is not a sound construction of the contract. His main contention with reference to the liability of the defendant in error is that "the Downing Company was the owner of the lot of land in question," and "the law imposed the duty upon the owner to guard the dangerous excavation dug by him, or his contractor or servants, across the way which had been used by the public for years. This duty upon the owner of the lot was an imposed duty, and could not be delegated to an independent contractor." In other words, the plaintiff contends that the Downing Company having contracted for work to be done which, if proper precautions were not taken, was bound to be dangerous to the public, a duty was imposed upon it to see that such precautions were taken, notwithstanding the fact that the work had been committed by it to an independent contractor. The question of the extent to which an employer is relieved from liability for the acts or negligence of an independent contractor employed by him has been much discussed by the courts, and conflicting decisions have been rendered thereon. The general rule, which is well established, is that an employer is not liable for the acts or negligence of a contractor who has complete control of the work, and of the persons employed by him to perform it. To this rule there are certain exceptions, and it...