125 P. 863 | Utah | 1912
Appellant brought this action against Salt Lake City, the respondent, to recover d’aniagies. The material allegations of the complaint are as follows:
*301 “That the city contracted with P. J. Moran to grade and pave Fifth Bast Street; that on and before May 25, 1908, said Moran plowed up said Fifth Bast Street along the east side of the block in which plaintiff’s house is situated; that the city negligently suffered him to throw and leave in the open gutter on the west side of the street earth and rubbish, thereby obstructing the gutter so that it was not capable of carrying off the water, and negligently permitted said condition to remain during the night of May 25th and morning of May 26th; that on said night there was a rainfall causing a large flow of water down said gutter that was diverted by said obstruction onto plaintiff’s property, into his cellar, damaging his house.”
Respondent denied all negligence and averred that tbe damages, if any, were caused by anxact of God.
At this trial it was made to appear that on the 4th day of May, 1908, respondent entered into1 a contract with the P. J. Moran mentioned in the complaint whereby he agreed to pave with asphalt and concrete a roadway sixty-six feet wide on Fifth East Street between South Temple and Third South Streets in Salt Lake City; that by the terms of said contract he agreed to “execute all of the said named work in a good, substantial, and workmanlike manner, and to furnish all the materials iand all the tools and labor necessary to propierly perform and complete the work ready for use in strict accordance with the attached specifications'.” The contract also contained 'Other provisions which appellant deems material and which in substance are as follows.; That the contractor shall make and maintain sufficient guards and barricades and do all things to prevent “accident or loss of any kind;” that whenever the contractor is not present at the work and at such time instructions become necessary' the board of public works or the city engineer may give the necessary orders to the superintendent or foreman in charge of the work; that any work which is defectively done shall be removed by the contractor whenever directed to do so. by the board aforesaid; that the contractor shall employ suitable mechanics and if' any person employed by him is incompetent, disorderly, or disobedient to the board of public works or to the city engineer, such person shall be discharged by the contractor upon request of said board or engineer; that the; con
At the trial it was made to appear that the ditch or gutter referred to in appellant’s complaint was some distance outside of that portion of the street which was being prepared for paving and which was to bie paved under the contract referred to; that in turning the teams in scraping the dirt in that portion of the street which was being prepared for paving the witnesses assumed, rather than stated it to be so, that, on thie day preceding the night on which the injury complained of occurred, some of the loose dirt was scraped some distance outside of the plowed portion of the street and was either scraped into the ditch or gutter, or left so near it, that such dirt was washed into' the ditch by the flood which came down the street and1 gutter on the night aforesaid; that the flood was due to what, for this locality, the witnesses said was an extraordinary and unusual rainstorm; that the ditch or gutter in question had always theretofore been of sufficient capacity to carry off flood waters; that in paving the street the contractor was required to construct concriete or cement gutters on either side of the sixty-foot strip; and to connect the same with ai concrete or cement curbing which extended some distance aboviei the bottom of the gutter; that the gutter or ditch referred to in the complaint was some distance away from the gutter and curbing aforesaid; that it was not neces
For the purposes of this decision we shall assume that the dirt was placed into or near the gutter aforesaid by the contractor.
Appellant also showed that there was a culvert over the ditch which was used by the' residents on the west side of the street as a driveway, to reach their homies with teams and wagons; that the flood waters washed the dirt and debris down the ditch, and the same lodged against the culvert aforesaid and filled up the ditch at that point SO' that the water was turned to the west and flowed onto the premises and into the basement of appellant’s house and caused the damages complained of.
After substantially proving the foregoing facts, appellant rested his case, and respondent’s counsel interposed a motion for a nonsuit upon various grounds, one of which was that from the undisputed facts before the court it was clearly made to appear that Mr. Moran was an independent contractor, and that under the facts as aforesaid respondent was not responsible for his negligent acts which it is claimed caused the injury and damages to appellant’s property. The court sustained thiei motion upon the ground stated and entered judgment dismissing the action.
The only questions for determination are: (1) Whether Moran, under the contract in question, was an independent contractor; and (2) if so, whether, under the undisputed facts, his acts were such for which respondent was, nevertheless, responsible.
Appellant contended ini the trial court, and now asserts that Moran was not an independent contractor, and that rie*-spondent is liable for his acts of commission as well as omission in case such acts or omissions constituted negligence.
“Now, the court has been over every one of these authorities that have been cited1, and while that Morris Ciase don’t decide, in my judgment, anything about what an independent contractor is, they just slide around that in that decision by conceding it and then go ahead and decide something else.”
While the court, in his statement, departs somewhat from the ordinary rales of English grammar, yet we have found-no difficulty in determining Ms meaning. Nor did the court intend to leave us in doubt with respect to the ground upon which his decision is based, as appears from the concluding portion of the aforesaid opinion, which reads as- follows:
“If I have not covered the points- counsel have in mind, I am willing to go on and cover them. I want to give sufficient reasons for my ruling so the Supreme Court won’t think I am attempting to avoid giving -a reason in any of these cases.”
No doubt the court desired to make the point he passed on so clear’ that this court could not again “slide around” it without seeing it. This is, however, not the first time that we have discovered either expressed or implied criticisms contained in the rulings made by the trial courts during the course of a trial in which it was intended to infer that this court sometimes Fails to decide the point upon which an opinion is desired by them, or, if decided, is, nevertheless, contrary to their views. Whether such criticisms are well founded of not is not' for us to determine. We feel constrained to say, however, in this behalf, that we, and not the
We have referred to the foregoing matters with some reluctance, and shall always refrain from referring to such things except when we deem it necessary. We now dose the .incident with the observation that, although we cannot un-qualifiedly approve the court’s English, we nevertheless have found no difficulty whatever in approving his ruling in sustaining the motion for nonsuit.
Nor was the work contracted for under the contract in question such as brings it within the rule of nondelegable powers. While the work contracted for was upon a public street, yet the street was, for the 'time being, withdrawn from public travel. Moreover, there is no complaint here that the injury was caused by reason of the unsafe condition of the street for use or travel. Neither was the work contemplated by the contract of such a character that its execution would necessarily cause the ditch or gutter to¡ be filled or choked up or interfered with so as to affect the flow of water therein. Indeed, it is clear from the terms of the contract and the character of the work that it was not intended that the contractor should interfere with the street outside of thait portion which he was to prepare for paving and which he - agreed to pave. The contract therefore does not come within the rule that the contraetee cannot escape liability where the doing of the work contracted for, necessarily brings about the conditions from which the injuries complained of, follow as a result. It is likewise clear that this case does.not come within the principle upon which 'the case of Morris v. Salt Lake City, supra, is based, namely, that respondent is liable because the contractor created a condition in a public street which was a menace and a¡ danger to the abutting property owner, and that the agents of respondent had actual knowledge of the danger, or that it existed for such a length of time as to impute notice thereof to respondent. The foregoing questions are also considered and passed upon in most, if not all, of the cases we have heretofore cited; and in all
By anything that we may have said herein, we d'o not wish to be understood as expressing an opinion upon the liability of Mr. Moran. This is a question not involved in this case and cannot be determined until he is brought into court.
In our judgment the ruling and judgment of the trial court are clearly right and should be affirmed. Such is the order. Respondent to recover costs.