81 Cal. 265 | Cal. | 1889
Lead Opinion
Action against a contractor for negligence in repairing a street; verdict and judgment for plaintiff for three hundred dollars; defendant appeals from the judgment without any bill of exceptions or statement.
It must be taken as established by the verdict that the allegations of the complaint are true. Therefore the fact must be taken to be that the defendant was a contractor “ to repair and replank East Street, in said city and county of San Francisco, state of California, from the intersection of Market Street with said East Street southerly to and beyond the intersection of Howard Street with said East Street”; that he entered upon the
The complaint is perhaps not a model.of pleading, but we think that it was sufficient, and that the demurrer was properly overruled.
If a contractor leaves an unguarded hole in a public street which he is repairing, it is negligence for which he is responsible to those injured thereby without contributory negligence. It appears from the appellant’s brief that there is an ordinance of the board of supervisors which contains, among other things, the following provisions:—■
“Any person by whom, or under whose immediate direction, or by whose immediate authority, as principal or as contractor, or as employee, any portion of a public street may be made dangerous, shall erect, and so long as the danger may continue maintain, around the por*267 tion of the street or highway so made dangerous, a good and substantial barrier; cause to be maintained during every night from sunset until daylight a lighted lantern at the ends of the portion of the street so made dangerous, and every side of a street crossing so made dangerous.”
The defendant did not comply with the requirements of this ordinance.
East Street is a public street. (Schulte v. N. P. T. Co., 50 Cal. 593.) And it is conceded by the counsel for the appellant that the court will take judicial notice of the streets. It is none the less a public street because the board ofvharbor commissioners are charged with the duty of keeping one half of it in repair. As was said in the case above cited: “ Nor is it material by whom the street was improved so as to fit it for travel. By whomsoever the work was done, the plaintiff, in common _ with the public, is entitled to use the street as a highway.” Nor is the question as to who had the authority to cause the street to be repaired important. If the defendant is guilty of negligence in repairing a street under contract with the proper authorities, he is a wrongdoer. If he was guilty of negligence in repairing the street without any competent authority, he is a fortiori a wrong-doer. It is enough that he left an unguarded hole in the street which he was planking, and that the plaintiff fell into it without any fault on his part. And this sufficiently appears.
The doctrine of respondeat superior, invoked by the appellant, has no application, — if for no other reason, because he was not a servant, but an independent contractor. (Boswell v. Laird, 8 Cal. 469; 68 Am. Dec. 345; O’Hale v. Sacramento, 48 Cal. 214; Du Prat v. Lick, 38 Cal. 691; King v. N. Y. Cent. R. R., 66 N. Y. 184; 23 Am. Rep. 37; Hilliard v. Richardson, 3 Gray, 349; 63 Am. Dec. 743; Reed v. Alleghany City, 79 Pa. St. 302.)
We therefore advise that the judgment be affirmed.
For the reasons given in the foregoing opinion, the judgment is affirmed.
Concurrence Opinion
I believe the above conclusion is correct. But I think it is so notwithstanding the ordinance referred to in the opinion. The defendant wa.s guilty of negligence, independent of the ordinance and its provisions. His negligence was patent to every one, and was pronounced and clear though the ordinance,had never been passed.
