Thomas v. Harrington

• Citation: 54 A. 285,72 N.H. 45
• Parties: THOMAS v. HARRINGTON et al.
• Decision Date: 03 February 1902
• Court: Supreme Court of New Hampshire

54 A. 285

72 N.H. 45

THOMAS

v. HARRINGTON et al.

Supreme Court of New Hampshire. Grafton.

Feb. 3, 1902.

Transferred from Superior Court Action by Mary C. Thomas against James J. Harrington and another. At the close of the plaintiff's evidence the court ordered a verdict for the defendants, and the plaintiff excepted. Transferred from superior court. Exceptions sustained.

The plaintiff's evidence tended to show that the defendants contracted in writing with one McFadden to construct two dwelling houses for the defendants in the village of Littleton, and as a part of the contract the former was "to put in the water pipe from the main road, six feet under ground." McFadden proceeded to execute the contract in accordance with its terms, and, while working thereunder, by the instrumentality of servants employed by him, with whom the defendants had nothing to do, and over whom they had no control, he dug a ditch in the street, from the water pipe therein to the sidewalk in front of the defendants' premises, 12 feet long, 5 1/2 feet deep, and 2 feet wide, for the purpose of laying a water pipe from the water main to the defendants' dwellings. McFadden, or his servants employed on the work, negligently left the trench unguarded and unlighted in the evening, although the evening was a dark one, and the electric lights for a part of the time were unlighted; and the plaintiff, while riding along the street, in the exercise of ordinary care, was thrown from her carriage and injured, in consequence of her horse falling into the ditch.

Everett C. Howe and Scott Sloane, for plaintiff.

Batchellor & Mitchell and Smith & Smith, for defendants.

WALKER, J. It is not necessary to decide whether McFadden was an independent contractor in the work of putting in the water pipe, or merely an agent of the defendants; for in either case the evidence was legally competent to support a verdict in favor of the plaintiff. From the written contract it appears that the defendants employed McFadden to build two houses upon their premises. One of the specifications of the contract was "to put in the water pipe from the main road, six feet under ground." The evident purpose of this provision was to secure a connection with the water main, which would require the digging of a ditch into the public highway. That the parties had in mind the excavation of a ditch in the highway is not open to doubt upon a reasonable construction of the contract. It was a necessary and anticipated part of the work which the defendants employed McFadden to do. Such an excavation in a street is a nuisance, because it renders public travel dangerous, and makes extra precautions necessary for the protection of travelers. Hence it became the duty of the defendants, who authorized and caused the ditch to be dug, to protect the public from the danger occasioned thereby. They knew the work could not be done, in its reasonable and proper prosecution, without increasing the danger of public travel in the highway at that point. The danger arose directly from the work which they required to be done, and not from the negligent manner of its performance. In such a case one cannot avoid responsibility for the consequences naturally to be apprehended in the course of the performance of the work by employing another to do the work as an independent contractor. Upon the modern authorities, the question of liability, under such circumstances, does not depend upon an inquiry whether the parties sustain the relation of master and servant, or whether the contract between them makes the employé an independent contractor. The employer cannot absolve himself from the duty which, under the law, he owes to another with reference to the performance of work which is dangerous in itself—as the digging of a ditch in the highway.

In Carter v. Berlin Mills, 58 N. H. 52, 42 Am. Rep. 572, the defendant was held not to be responsible for flowing the plaintiff's land, not merely because it had employed an independent contractor to float the logs down the river, but also because the injury was not the direct result of the work it employed the Thurstons to do. The court say (page 59, 58 N. H., 42 Am. Rep. 572): "The plaintiff's injury was not the natural result of the work contracted to be done. A reasonable use of the dams for proper purposes, and a reasonable use of the stream for the transportation of logs, were lawful, and the authority conferred by the defendants was to execute the contract by a proper and reasonable use of all its means and appliances." If it had appeared in that case that the work which the contractors agreed to do would necessarily produce the damage the plaintiff suffered, it is believed the opposite result would have been reached, as was the case in McDonell v. Boom Co., 71 Mich. 61, 38 N. W. 681. It was held in that case that where a boom company, having full control and management of a stream and the dams thereon, contracts for driving logs therein, the reasonable performance of which contract obliges the contractor to so run and manage the logs and water as to damage riparian owners, such...