133 P. 781 | Or. | 1913
Opinion by
This appeal presents practically but one proposition: Can the defendant be heard to say that Jeffery & Buff-ton were independent contractors, and, therefore, the parties solely responsible for the injury? That such a defense is usually available is shown by a multitude of authorities: MacDonald v. O’Reilly, 45 Or. 589 (78 Pac. 753), and eases there cited. But there is an exception to this rule which clearly includes the defendant. It is this: Where a statute or city ordinance requires certain precautions to be taken for the safety of the public in the manner of doing the work, the contractor cannot shift his liability for failure to take these precautions by employing a subcontractor: Colgrove v. Smith, 102 Cal. 220 (36 Pac. 411, 27 L. R. A. 590); Luce v. Holloway, 156 Cal. 162 (103 Pac. 886); Storrs v. City of Utica, 17 N. Y. 104 (72 Am. Dec. 437); North Chicago St. R. R. Co. v. Dudgeon, 184 Ill. 477 (56 N. E. 796); Robbins v. Chicago City, 4 Wall. 657 (18 L. Ed. 427); Hawver v. Whalen, 49 Ohio St. 69 (29 N. E. 1049, 14 L. R. A. 828); Werthheimer v. Saunders, 95 Wis. 573 (70 N. W. 824, 37 L. R. A. 146). See, also, notes to the cases last cited. Hero the city ordinance required the contractor to guard with proper barriers, by day and night, the excavations made, and to post such notices and signals as would indicate to the public the condition of the street. No fence inclosed the hole into which plaintiff slipped, and no light indicated its existence. Defendant cannot permit its subcontractors to leave a dangerous trap, forbidden by the city ordinances, and in itself constituting a nuisance, and thus escape the liability entailed by the ordinance when it became the principal contractor.
The judgment is affirmed. Affirmed.