Wilton v. City of Spokane

• Decision Date: 26 May 1913
• Citation: 73 Wash. 619,132 P. 404
• Court: Washington Supreme Court
• Parties: WILTON v. CITY OF SPOKANE et al.

132 P. 404

73 Wash. 619

WILTON v. CITY OF SPOKANE et al.

Supreme Court of Washington

May 26, 1913

Department 2. Appeal from Superior Court, Spokane County; Sullivan Judge.

Action by Andrew Wilton against the City of Spokane and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded as to City of Spokane, and affirmed as to the other defendants.

Hurn &amp Upton, Robinson & McHugh, H. M. Stephens, W. E. Richardson and Ernest E. Sargeant, all of Spokane, for appellants.

Morrill, Chester & Skuse, of Spokane, for respondent.

FULLERTON J.

The respondent brought this action against the city of Spokane, Foster & Hindle, a copartnership, and the Washington Water Power Company, a corporation, to recover for personal injuries. Before issue was joined on the complaint, the action was dismissed as to the Washington Water Power Company. Afterwards it was prosecuted to a judgment against the other defendants, both of whom appeal. The facts of the case are not complicated, nor seriously in dispute. The city of Spokane let a contract to Foster & Hindle for the improvement of one of its streets. The work included the grading of a roadway along the center of the street and the construction of a parking strip and a sidewalk on each side thereof. By the terms of the contract Foster & Hindle were made independent contractors, responsible to the city for the result of the work only, not as to the manner in which it was to be performed. In grading the street to its proper level, a ledge of rock was encountered which the contractors removed by blasting; the explosive used being dynamite. In the course of the work a blast put in near the bottom of the required grade failed to explode, and the contractors, instead of removing it, covered it up and constructed the surface of the street over it. Afterwards the city accepted the work as a compliance with the contract without knowledge of the unexploded blast. Some months later the Washington Water Power Company applied for and was granted permission to erect a line of poles along the margin of the improved street on which to string electric wires for lighting purposes. The holes in which to set the poles had to be dug somewhat deeper than the street was cut down in the performance of the improvement work, and where the ledge of rock was encountered the rock necessary to be removed was broken up by blasting. While the employés of the Washington Water Power Company, among whom was the respondent, were drilling for the purpose of putting in a blast in one of such holes, the drill encountered the unexploded blast left in the rock by Foster & Hindle, causing it to explode. The explosion put out one of the respondent's eyes and otherwise seriously injured him, and he brought the present action, with the result before stated.

The record does not make clear the grounds on which the judgment against the city was rested. Several grounds on which it is thought it may rest, however, are suggested in the argument and these we will notice briefly in their order. It is first said that the work was of such a character that it could not be let to independent contractors, and that the city could not escape liability for the negligent performance by endeavoring to so let it. The particular contention is that the work of blasting rock in an inhabited portion of a city is so inherently dangerous in itself that public policy forbids that the city be permitted to let the work to an independent contractor. But if this be the general rule, we do not think the present case falls within it. The leaving of an unexploded blast of dynamite in the rock below the surface of a...