200 A. 190 | Pa. Super. Ct. | 1938
Argued March 10, 1938. The plaintiffs, owners of a building at No. 451 South Sherman Street, Wilkes-Barre, Pennsylvania, brought this action in trespass against Glen Alden Coal Company to recover compensation for damages to the real *311 estate of plaintiffs caused by an explosion of dynamite used in connection with the drilling of a bore hole in the public street on which the land abutted. It was alleged by plaintiffs that the coal company was actually conducting the drilling operations. The coal company set up a defense, the burden of which was that the drilling and shooting were done by Sprague Henwood, Inc., an independent contractor. On trial the jury was instructed that if the drilling and shooting were done by Sprague Henwood, Inc., working as an independent contractor, the plaintiffs were not entitled to recover from the defendant. As the jury found for the plaintiffs, we must assume that they found that the drilling and shooting were not done by Sprague Henwood, Inc., as an independent contractor. The coal company, the appellant, complains of the refusal of its motion for judgment n.o.v., and in support thereof urges that the evidence so clearly established the fact that Sprague Henwood, Inc., was an independent contractor that the verdict should not be allowed to stand. The plaintiffs not only insist that it was for the jury to determine whether Sprague Henwood, Inc., was an independent contractor and that the finding of the jury was conclusive as to that fact, but also urge that even if Sprague Henwood, Inc., was an independent contractor the coal company was still liable. We are of the opinion that the court below properly refused the motion for judgment n.o.v., but are not in entire accord with the reasoning of the court below or that of the appellees. We believe that, under the circumstances here present, the coal company was not relieved from liability even though Sprague Henwood, Inc., might be classed as a so-called independent contractor.
If the only issue presented on this appeal had been whether Sprague Henwood, Inc., was an independent contractor, and if that issue were controlling, we would have been constrained to hold that the coal company *312 was at least entitled to a new trial. However, under our view of the law applicable to the question it is not essential that we should so hold, and we will therefore assume for the sake of argument that the drilling and shooting were actually performed by Sprague Henwood, Inc.
The coal company was the owner of a considerable acreage of strata of mined and unmined coal lying under the city of Wilkes-Barre and was interested in knowing the condition of the roof above the seam of coal that it might know the effect upon the surface of the removal of the coal. It made application to the city for permission to drill certain "diamond drill holes" on city streets and the city granted permission so to do by resolution as follows: "November 18, 1930. Be it resolved by the City Council of the City of Wilkes-Barre: That the Glen Alden Coal Company be and they are hereby granted permission to drill seventeen diamond drill holes, 2 inches in diameter at the following locations, as shown on the attached blue print: . . . . . . This permission is granted with the understanding that the Glen Alden Coal Company shall file with the City Engineer a cross section of each of said drill holes and shall be liable for all damages to persons and property during the time said drill holes are being put down; also save the City harmless from any and all suits and claims whatsoever." The maps or plans attached showed the precise locations at which the holes would be drilled, and the evidence disclosed that the coal company had done considerable drilling of test holes. In fact, it appeared that such operations were a regular routine in its business.
The coal company employed Sprague Henwood, Inc., to bore the holes. On April 9, 1931, pursuant to a contract which was in writing, Sprague Henwood, Inc., moved its equipment to South Sherman Street at a location within eight feet of plaintiffs' building and *313 started drilling. When the drill had penetrated forty-seven feet a boulder was encountered which made it necessary to use dynamite in the hole. It was shown that in fifty per cent of all the holes drilled in that section it was necessary in the drilling operations to use dynamite for the purpose of blasting certain rocks that were encountered and in order that the drilling might continue. The driller then inserted five sticks of sixty per cent dynamite eight inches long and three-quarters of an inch in diameter in the hole at a point forty-seven feet from the surface and discharged, or fired, the explosive. Vibrations were set up with a resulting damage to plaintiffs' premises.
The appellees suggest two reasons why the coal company could not hide behind the independent contractor, Sprague Henwood, Inc.; viz., (a) that the work to be done was inherently dangerous, and (b) that the work to be done was by virtue of a public authority for purposes not having to do with the ordinary use of public roads or streets and the doing of the work involved a risk of injury to the users of the public streets and adjacent property.
We pause here to consider the pleadings. The tort charged was averred only in most general language, the averment being that the coal company "drilled a large hole or opening and therein intentionally, wilfully, negligently and without reasonable care, set off a huge quantity of dynamite, or other high explosives, causing numerous severe and loud explosions and concussions," and thereby caused direct damage to plaintiffs' abutting real estate. There was not at the trial any direct evidence of negligence in the manner of using the dynamite or, generally speaking, that there was lack of reasonable care in such use. There was not any allegation or specific evidence that the use of dynamite under the circumstances constituted a nuisance. (See Forster v. Rogers Bros.,
As to work done by independent contractors, the general rule is thus stated in Restatement, Torts § 409: "Except as stated in §§ 410 to 429, the employer of an independent contractor is not subject to liability for bodily harm caused to another by a tortious act or omission of the contractor or his servants." It is likewise settled in Pennsylvania that a person is not liable for the acts of negligence of another unless the relation of master and servant, or principal and agent, exists between them, and that ordinarily when an injury is done by a person exercising an independent employment the party employing him is not responsible: Fuller v. Palazzolo,
(1) We will first consider the exception sometimes made which deals with inherently dangerous agencies. *315
Appellees cite and rely upon the rule as stated in Restatement, Torts § 427, as follows: "One who employs an independent contractor to do work which is inherently dangerous to others is subject to liability for bodily harm caused to them by the contractor's failure to exercise reasonable care to prevent harm resulting from the dangerous character of the work." If this principle, as broadly stated in the Restatement, were the law in Pennsylvania, the controversy would be solved. While the statement of the law as contained in the Restatement is in harmony with the decisions of the courts of many jurisdictions, "it is not supported by any decision of our Supreme Court, or this court, which the industry of counsel or our own examination has discovered": Silveus v. Grossman,
In the Silveus case a fire almost completely destroyed defendant's building through no fault of the owner. Brick walls were left standing and the municipal authorities notified him to remove the menacing walls within twenty-four hours. Defendant straightway employed an independent contractor to take down these walls. In doing so the independent contractor, Kimbal, attached a cable to the wall to pull it over and the wall fell on plaintiff's property causing considerable damage. "This manner of performance indicated want of care on Kimbal's part" (
In this connection we will again refer to the facts disclosed by the record. The maps submitted to the city in connection with the application for permission to drill the holes in the city streets showed the location of each proposed hole. The coal company and not Sprague Henwood, Inc., fixed such locations and the hole in question was placed within eight feet of plaintiffs' building. The company knew, or ought to have known, that in drilling holes in that section it was part of the regular routine of such operation to explode dynamite to shatter boulders that were encountered by the drill. The correspondence between the defendant and Sprague Henwood, Inc., showed that the defendant was engaged in extensive drilling operations. The defendant, as part of its own proofs, showed that in fifty per cent of the holes drilled there dynamite was a necessary part of the operation and was so used. These were shallow holes only extending to the coal seam, and in this particular hole only penetrated the earth sixty-four feet six inches and the dynamite was fired at forty-seven feet. The coal company therefore contracted with *317
Sprague Henwood, Inc., knowing where the hole was to be drilled and that dynamite would be fired. It also appeared that the coal company's agents were on the ground from time to time observing the progress of the work. When the coal company secured permission from the city to do the work it agreed to be liable for all damages to persons and property during the time the drill holes were being bored. While this provision is not of itself controlling (Thomas v. Altoona Logan V.E.R. Co.,
These facts disclose a situation quite different from the bare use by an independent contractor of a high explosive. A situation was shown where the coal company undertook to have drilled a hole located within a few feet of plaintiffs' property, which operation involved the firing of dynamite almost under plaintiffs' property and within comparatively few feet of the surface. The charge was necessarily heavy enough to shatter boulders and such an explosion was bound to set up violent vibrations in the earth and the waves would in the natural course of events reach plaintiffs' property. The extent of the damage depended on many factors, some of which were in the control of the actor and some of which were not. Such an act was just as much a breaking of plaintiffs' close as any other direct trespass. In fact there was evidence on the part of the plaintiffs that not only was the plastering injured, but stones and dirt were thrown on plaintiffs' property.
Rafferty v. Davis, supra, cites with approval the statement in 11 R.C.L., p. 673, as follows: "The decided weight of authority supports the view that where one explodes blasts on his own land and thereby throws rocks, earth or debris on the premises of his neighbor, *318
he commits a trespass and is answerable for the damage caused, irrespective of whether the blasting is negligently done." In such a situation, the coal company can not hide behind its independent contractor. Where an act which causes injury to another is one which the contractor was employed to do and the injury results not from the manner of doing the work but from doing it at all, the employer is liable for the acts of his independent contractor: Foehr v. N.Y. Short Line R.R. Co.,
(2) The appellees next rely upon the principle of law as stated in Restatement, Torts § 417, as follows: "One who employs an independent contractor to do work in a public place which (a) unless carefully done involves a risk of making the physical condition of the place dangerous for the use of members of the public, and (b) can only be lawfully done under a license given by a public authority, is subject to liability for bodily harm caused to members of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use." Where the question is not an open one we are bound by the decisions of the Supreme Court and, as they do not support the rule stated, we cannot follow it. The principle involved has been discussed in Pennsylvania cases in a number of situations which involved excavations in public highways. In the case of Smith v.Simmons, *319
While these cases indicate quite definitely that the Supreme Court was not willing to follow the principle stated in § 417, a modified form of that principle has been sustained which we would state as follows: When one employs an independent contractor to do work in a public place, which unless carefully done involves a risk of making the physical condition of the place dangerous to the public and can only be lawfully done under a license given by a public authority, and such grant or license of privilege imposes an obligation on the part of the licensee as a consideration for the grant to do certain things for the protection of the public, the individual in receipt of the benefit cannot be relieved of liability assumed by committing the performance of these duties to another. In fact, in such cases liability cannot be avoided by showing that the injury resulted from the fault or negligence of the third person employed to perform these public duties.
In Lancaster Ave. Imp. Co. v. Rhoads,
Thomas v. Altoona Logan V.E.R. Co., supra, cited by the appellant, is not to the contrary. In that case a contractor engaged by the railway company agreed to "indemnify and save harmless the defendant from payment of all sums of money by reason of all or any such accidents, injuries, damages or hurt that may happen or occur upon or about said works" (p. 366). It will be noted that this was not a condition imposed by a public authority as the condition for an entering on such public property, but was a mere private agreement among the parties. Likewise the case of Erie v. Caulkins,
Judgment affirmed.