Salliotte v. King Bridge Co.

• Decision Date: 20 April 1903
• Docket Number: 1,130.
• Citation: 122 F. 378
• Parties: SALLIOTTE v. KING BRIDGE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

122 F. 378

SALLIOTTE v. KING BRIDGE CO.

No. 1,130.

United States Court of Appeals, Sixth Circuit.

April 20, 1903

This is an action of trespass on the case. The plaintiff in error who was the plaintiff below, is the owner of a tract of land bounded on its northern side by the river Rouge, and on its westerly side by a great public highway, called the 'Detroit and Monroe Road,' which road crosses the river upon a public bridge at the northwestern corner of the plaintiff's land. The river Rouge is a navigable stream emptying into the Detroit river, and wholly within the state of Michigan. The declaration avers that in 1896 the defendant, the King Bridge Company, contracted to construct a new iron bridge, with stone abutments and piers, to take the place of an old bridge; the contract being with the townships of Springwells and Ecorse, and with an electric railway company which was operating an electric road along and upon the said Detroit and Monroe Road. It is then averred that it was the duty of the said contractor 'so to conduct himself and so to execute the said work as not to injure in any manner the premises aforesaid of the said plaintiff, yet the said defendant, in utter disregard of its duty in the premises and to save the expense of hauling dirt from a distance, did by a dredge, dig up a large amount of dirt next to the Ecorse abutment of said bridge, thereby turning away the natural channel bank of the said river Rouge, and widening the same at that place to a great width, to wit, thirty feet, and by reason of the large amount of dirt taken from the said river at the said place, the cutting away of the channel bank as aforesaid, and of the placing of a turntable in the center of the said river, the said defendant, in utter disregard of the property rights of the said plaintiff, changed the course of current of the said river Rouge, and caused the same to run directly against the aforesaid property of the said plaintiff, thereby tearing and carrying away a large part of the frontage of the said plaintiff's land upon the said river Rouge, and doing great damage to his property, etc., all to the damage of the said plaintiff five thousand dollars. ' The defendant pleaded the general issue and gave notice of certain defenses which it would make under that issue--among others, that it would show that it had only been a contractor with the townships named above and the electric railway to construct a bridge according to plans furnished by said townships, and which said plans and specifications had been approved by the proper federal authority-- the river Rouge being a navigable stream-- and that any dredging done had been by the requirement of said federal authority for the purpose of maintaining the navigability of said river. At the close of all of the evidence, the court instructed the jury to find for the defendant.

Chas. Stewart (Moore & Moore, of counsel), for plaintiff in error.

Brennan, Donnelly & Van De Mark and Henry L. Lyster, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, having stated the case as above, .

1. The present structure took the place of an old bridge. It is not averred that the bridge was constructed without authority or unlawfully, and there was no evidence offered tending to show that the two townships were without authority in replacing the old by the new bridge, or exceeded their authority in contracting for the construction of the particular bridge here in question. Under the law of Michigan, the county board of supervisors had the power to determine when and where navigable streams may be crossed by bridges; and, in the absence of any averment or evidence to the contrary, we must assume that this bridge was lawfully constructed, the townships having obtained the consent of the proper authority. Nelson v. Navigation Company, 44 Mich. 7, 5 N.W. 998, 38 Am.Rep. 222; Pratt v. Brown, 106 Mich. 628, 633, 64 N.W. 583. So far as the consent and approval of the United States was essential, that was obtained; the plans and specifications of the bridge having been submitted to, and approved by, the Secretary of War, 26 Stat. 454 (section 7, Act Sept. 19, 1890).

2. So far as the plaintiff's declaration proceeded upon the ground of either unskillfulness or negligence in the construction of the bridge, or its abutments and pier, there was no substantial evidence upon which a verdict might have been returned against the King Bridge Company. The plans for the bridge, including its abutments and piers, were prepared under the direction and supervision of the authorities contracting for the erection of the bridge, and approved by the Secretary of War; and when so adopted the work of construction was let out, as a whole, to the King Bridge Company. That company contracted with a third person to construct the bridge abutments and piers, and this substructure was located and constructed under the constant supervision of the civil engineer representing the owners of the bridge. The only charge of negligence is 'that, to save the expense of hauling dirt from a distance, (the defendant) did, by a dredge, dig up a large amount of dirt next to the Ecorse abutment of said bridge: thereby tearing away the natural channel bank of the said River Rouge, and widening the same at that place,' etc. Now, if it was either unskillful or negligent to so dredge the river next the abutment on plaintiff's side of the river, it was the negligence of an independent contractor, and not that of the defendant. The firm which built the abutments, and did the excavation for their foundation and the dredging in front when built, contracted to do that particular work in accordance with the plans and specifications already prepared. They did not become the general servants of the King Bridge Company, but only contracted to do for that company a specific work. That the bridge company, through its engineer or other agent, exercised some kind of general supervision, does not affect the question, where that is only for the purpose of seeing that the specific work is done in accordance with the contract. In such circumstances, those who contract to produce a finished structure according to plans furnished are independent contractors, responsible for their own acts of negligence. Powell v. Virginia Construction Co., 88 Tenn. 697, 13 S.W. 691, 17 Am.St.Rep. 925; Casement v. Brown, 148 U.S. 615, 13 Sup.Ct. 672, 37 L.Ed. 582; Railway Co. v. Martin, 100 Ala. 511, 14 So. 401. A general contractor is not liable to third persons for the negligent acts of an independent subcontractor unless the thing contracted to be done is necessarily a public nuisance, or the injury is a direct result from the act or thing which the independent contractor is required to do. 16 A.& Eng.Ency.Law, 192, 196; Quarman v. Burnett, 6 M.& W. 499; Laugher v. Pointer, 5 B.& C. 560; Blake v. Ferris, 5 N.Y. 48, 55 Am.Dec. 304; Robbins v. Chicago, 4 Wall. 657, 18 L.Ed. 427; Casement v. Brown, 148 U.S. 615, 13 Sup.Ct. 672, 37 L.Ed. 582. This principle of nonliability for the negligence of an independent contractor applies to and exempts the general contractor. Powell v. Virginia Const. Co., 88 Tenn. 692, 13 S.W. 691, 17 Am.St.Rep. 925; Rapson v. Cubitt, 9 M.& W. 710; Slater v. Mersereau, 64 N.Y. 138.

3. But aside from this, the evidence clearly established that the dirt excavated at the edge of the river bank, where the road touches the river for the purpose of making a pit for the foundation of the abutment, was thrown on the river side and into the river to make an embankment to keep the water out. When the abutment was finished, the dirt thus thrown into the edge of the river was dredged out and used to fill in behind the abutment. There was no substantial evidence that the dirt dredged and used to form the bridge approach exceeded that thrown into the river, or that the river bank was cut away either to save hauling, or for any other unlawful purpose, or in a negligent or unskillful manner.

4. So far as the plaintiff's case is rested upon damages due to any defective construction for which the defendant might be liable upon its contract to the owners of the bridge, it is not maintainable, because there is not the slightest evidence that any damage occurred until after the completion of the bridge and its acceptance by the townships. There is no rule under which a third person may recover damages against a builder or contractor for an injury sustained by reason of defective construction, if the thing constructed is not inherently and necessarily dangerous, when the injury did not occur until after the builder or contractor had parted with the possession and title. The liability of the builder or contract for defective construction is to the person with whom he was under contractual relations, and a stranger can hold him liable after he has parted with the possession only under exceptional circumstances. Marquardt v. Ball Engine Co., 122 F. 374. This rule has been applied to suits by strangers for injury arising from defective construction of bridges and houses, when it was sought to hold the contractor liable after completion of his work (The Mayor of Albany v. Cunliff, 2 N.Y. 165; Curtin v. Somerset, 140 Pa. 70, 21 A. 244, 12 L.R.A. 322, 23 Am.St.Rep. 220), and to an action against a contractor for an injury from a bursting sewer. First Presbyterian Cong. v. Smith, 163 Pa....