The Mayor And Aldermen Of The City Of Savannah v. George

• Decision Date: 31 July 1873
• Parties: THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH, plaintiffs in err0r. v. GEORGE v. WALDNER, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 316

THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH, plaintiffs in err0r. v. GEORGE

v.WALDNER, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Municipal corporations. Streets. Damages. Expenses. Charge of Court. Before Judge Schley. Chatham Superior Court. January Term, 1873.

George V. Waldner brought case against the Mayor and Aldermen of the City of Savannah for $16,000 00 damages, alleged to have been sustained by him by reason of the negligent conduct of the defendant in not keeping Whitaker street in good repair at its intersection with Hall street, and in leaving open a ditch or sewer across the street first aforesaid at said point of intersection, into which, on the night of December 5th, 1871, the plaintiff and his horse were precipitated, to his great damage. The defendant pleaded not guilty.

The evidence made substantially the following case:

On the night of December 5th, 1871, the plaintiff was returning *home from his business, on horseback, through Whitaker street, one of the public highways of the city. His horse started, stumbled and fell into a sewer which was opened across the street, some eight or nine feet deep. Before the accident, his horse was worth $250 00; he was subsequently sold at auction for $50 00. The plaintiff was injured both externally and internally. Previous to the accident he was a hearty, strong man; since, his health has been very much impaired. He believes this result to be attributable to the injuries he then sustained. There were no lights placed at the opening to warn persons passing.

The contract to build this sewer had been let out by the defendant to Charles Van Horn. He had sub-let the job to McCrohan & Kirlin, who were engaged in doing the work at the time of the accident. The contract stipulated that the work should be done under the supervision of the city surveyor to see that the contract was complied with. It contained no provision to the effect that the contractors should erect lights at night.

The contest was as to whether the defendant, or the contractors doing the work, were liable to the plaintiff, and therefore much of the evidence is omitted.

The defendant requested the Court to charge the jury as follows:

1st. "That the doctrine of respondeat superior applies only where the relation of master and servant exists; if, therefore, the jury find under the evidence that McCrohan and Kirlin were not the servants of the city, that the city is not responsible

2d. "That sub-contractors are not the servants of the superior; if, therefore, the jury find under the evidence that McCrohan and Kirlin were sub-contractors, the city is not liable.

3d. "That public officers in the discharge of a public duty are not responsible for the negligence and omissions of those employed by them. 4th. "That the Mayor and Aldermen in ordering the construction *of a sewer in the street, though it may be for the time being an obstruction of the street, it is not a violation of their duty to keep the streets in repair.

5th. "That a municipal corporation is not. liable for the misfeasance, negligence or omissions of those employed by it.

6th. "That the duty of putting up lights is a duty imposed upon the persons making the excavation, and not upon the city employing them.

7th. "If the jury find that the injury was occasioned by the stumbling of the horse, and not because there were no lights, the city is not liable."

The Court proceeded to charge the jury, and referring to each request separately, refused to give it in charge. The jury rendered a verdict for the plaintiff for $2,000 00. The defendant moved for a new trial on the following grounds:

1st. Because the Court erred in refusing to charge as requested in the first, second, third, fourth, fifth, sixth and seventh requests to charge.

2d. Because the Court erred in the reason given for his refusals to charge as requested, that reason being that the city could not delegate its right, power and duty to keep the street in repair, there being, it is respectfully submitted, no such delegation of right, power and duty involved in the law or the facts of this case.

3d. Because the Court erred in saying to the jury that perhaps if there had been lights the horse would not have stumbled, this in reply to the seventh request to charge, which was, that if the jury should find under the evidence that the injury was occasioned by the stumbling of the horse, and not because there were no lights, the city would not be liable. The plaintiff in error submits that this was an expression of opinion on the evidence, which is error.

4th. Because the Court erred in instructing the jury that in estimating the damages they could take into consideration the expense to which plaintiff had been put in and about his suit, thus leaving the jury to find a fact in regard to whichthere was not a particle of testimony.

*The motion was overruled and a new trial refused. Whereupon the defendant excepted upon each of the grounds aforesaid.

W. B. Fleming, for plaintiff in error.

Thomas R. Mills; Rufus E. Lester, for defendant submitted the following brief:

1. The city of Savannah is charged with the duty of keeping the streets in safe condition and of abating nuisances therein: See Code, sec. 4751; Mayor and Aldermen v. Cullens, 38 Ga., 346; Savannah. Albany and Atlantic & Gull R. R. v. Shields, 33 Ga., 614; Shearman & Red. on Neg., sec. 133; Chicago v. Robbins, 2 Black, 422; Storrs v. Utica, 17 N. Y., 105; 3 Selden, 497.

2. The digging of a sewer, though a lawful act, and authorized by law, becomes a public nuisance, unless reasonable means be adopted for the safety of the public. To leave an open sewer in a street in a populous city is to neglect the public safety, unless lights or guards, or other means of safety or protection be adopted to warn against the danger: See Storrs v. Utica, 17 N. Y., 105; Robbins v. Chicago, 2 Black, 418; 4 Wall; Shearman & Red. on Neg., end of sec. 84. City requires lights, etc., from the citizen who digs sewers in the city: City Ordinances 1871, p. 472; 14 Barbour, "3.

3. For injuries sustained by such negligence, the party suffering the injuries is entitled to damages. It is contended on the other side that the work was put out by contract, and that where work is let out to an independent contractor, the party for whom the work is being done is relieved from responsibility for negligence. We reply: 1st. The contract does not make it the duty of McCrohan & Kirlin to adopt these means for the public safety, such as lights, fencing, etc., by night; they are, therefore, only responsible, if at all, for the safety of passers by whilst actually present and engaged in the work: See Buffalo v. Holloway, 14 Barbour, 101-113; Storrs v. Utica, 17 N. Y., 105; Shearman & Red. on Neg., sec. 83, *note (1.) One cannot escape from an obligation imposed upon him by law by engaging for its performance by contract: Shearman & Red. on Neg., sec. 84. 2d. It is admitted that by the terms of the contract, the city reserved the right of supervising the work, and reserved certain rights over the contractors. This makes the relation of McCrohan & Kirlin that of servants, not contractors: See 5 Ellis & Blackburn, 115. 3. If McCrohan & Kirlin really were contractors and not servants of the city, plaintiff in error is still responsible.

1st. Because McCrohan & Kirlin were not charged by the contract with the duty of putting up lights or otherwise guarding the public safety: See City of Buffalo v. Holloway, 3 Stldon, 493; 14 Barbour, 114 and 113; Shearman & Red. on Neg., sec. 83 and 84. Nor could this duty have been imposed on contractors so as to relieve the city from injuries done the public: Storrs v. Utica, 17 N. Y., 105.

2d. Because the defect, i. e. the sewer, which occasioned the injury, was the direct result of the act which the contractor was employed to do. When the injury is the direct result of the act which the contractor is employed to do, the employer is liable to injured party: Lowell v. B. & L. R. K., 23, Pickering, 31; Hole v. S. & S. R. R., 6; Hurlstone & Nor., 495; Robbins v. Chicago, 4 Wallace, 678 and 679; Storrs v. Utica, 17, N. Y., 104, (overruling and explaining Blake v. Ferris, Pack v. Mayor, etc., and Kelly v. Mayor, etc.) pages 104 to 109

If we are correct in our argument that the city cannot delegate, by contract, the duty of keeping the streets in repair and safe condition, so as to relieve themselves from liability for injuries done, then the 1st and 2d of requests to charge in Court below were entirely irrelevant and immaterial and properly refused, and the verdict ought to have been the same. Although a request to charge be pertinent and legal, yet if the verdict as rendered does substantial justice, a new trial should not be granted: See Ga. R. R. & Bkg. Co. v. Scott, 37 Ga., page 94.

For a Judge to assume a fact to be true which is not...