City of Independence v. Slack

| Mo. | Mar 31, 1896

Maceakdane, J.

Henry C. Phelps obtained a judgment against plaintiff, the city of Independence, for physical injuries caused by stones and other obstructions which it negligently permitted to remain on one of its streets. This suit is prosecuted by plaintiff against defendants who, it is alleged, wrongfully and negligently placed the obstructions in the street and were primarily liable, and, as a consequence, are liable over to plaintiff, who had paid the judgment against it.

The petition charges that at the time the said Phelps received his injuries defendants Slack and McCauley were engaged in the construction of buildings abutting on the street and in the construction of a stone sidewalk on tbe street in front of the buildings, and defendant McCoy was acting as agent of said defendant McCauley in directing and controlling said work. That an excavation was made in the street for the purpose of an area under said sidewalk to connect with the cellar under said buildings, and that stones to be used in the construction of said sidewalk were left in the street. That said excavation was wrongfully and negligently made, and said stones negligently placed in said street at said point by defendants, and wrongfully and negligently left unlighted so that no warning or protection was given to persons passing along said street, and the injury to said Phelps was primarily caused by such wrongful and negligent acts of defendants. The petition further charged that plaintiff had notified defendants that said suit had been commenced against it by Phelps and was pending, and when it would be tried, and to appear and defend the same.

Defendants filed separate answers. That of McCoy was a general denial. The answer of each of the other defendants contained- a special plea to the effect that the sidewalk in front of their property was constructed by one Stewart under a contract with defendant, whereby he agreed to furnish the material and do the work for a stipulated price. That by the terms of said' contract Stewart was to construct a completed sidewalk and defendant retained no right to direct or control the means and manner of doing the work. The reply of plaintiff to each of these answers was a general denial.

On the trial plaintiff offered in evidence the records and proceedings in the suit of Phelps against the city of Independence, evidence tending to prove notice to defendants of the pendency of said suit, and established by evidence the following facts:

Defendants Slack and McCauley were owners of the lots abutting upon the street in front of the point at which Phelps was injured; they had each erected buildings on their respective lots which were hear completion; they each made excavations and prepared the street adjacent to their respective property for laying a sidewalk; these excavations were guarded so as to prevent persons from falling therein; large flagstones, five feet wide and ten feet long, were brought from Fort Scott, Kansas, for use in the construction of the sidewalk. For the purpose of fitting and dressing these stones,' they were placed upon the street, leaving a passway three or four feet wide between them and the curbing, and were suffered to remain in that position- for two weeks or more. Mr. Phelps, passing along the street in the nighttime, in order to avoid the excavations, went out. in the street and fell over these stones and was injured.

It was shown on examination of plaintiff’s witnesses that defendants Slack and McCauley had separate contracts with one Stewart to furnish the stone and construct sidewalks in front of their respective buildings. These contracts called for completed sidewalks of designated stone for which stipulated prices were to be paid. Defendants retained no power to direct the manner or means of doing the work or control or right to control Stewart in the performance of the contract in any respect. The stones were.placed and allowed to remain in the streets by Stewart without direction or suggestion of defendants, or knowledge, when the contract was made, that they would be so placed, and'allowed to remain unguarded.

Plaintiff offered to read the deposition of one Murphy, taken in the suit of Phelps against plaintiff, and who had since died, for the purpose of proving that defendants employed the witness to superintend the construction of the sidewalk. The deposition was excluded by the court on objection by defendants. At the" conclusion of plaintiff’s evidence on motion of defendants the court gave to the jury an instruction in the nature of a demurrer to the evidence and plaintiff took a nonsuit with leave. This nonsuit the court afterward refused to set aside and plaintiff appealed.

I. The right of the city of Independence to recover against these defendants the amount it was required to pay Phelps depends upon whether they were primarily liable for the injury. The action must therefore be for a cause for which defendants are liable. Defendants deny their liability on the ground that the negligence which resulted in the injury to Phelps was that of an independent contractor for which they are not answerable. The question is, can the negligent act of Stewart in creating a nuisance in the street be attributed to defendants. If so, it must be either for the- reason that Stewart was, in the performance of the act, their servant or agent, or that defendants owed to the city and the public the duty to keep the street in front of their property free from obstructions which they could not lawfully shift to another and thereby exonerate themselves.

The distinction between an independent contractor for whose negligence in the conduct of the work or business the employer will not be answerable, and of an agent or servant for whose conduct he is responsible as for his own acts, is at this day well settled. The general rule is that one employing a competent person exercising an independent occupation, to do a work for him which is not unlawful in itself or dangerous to others, and retaining no control of the methods such person may adopt or power to direct or control him in the work except as to results, will not be answerable for the wrongful or negligent acts of such contractor or his servants committed in the prosecution of the work. Crenshaw v. Ullman, 113 Mo. 638, and cases cited.

Difficulties are often encountered in the application of the rule to the facts in particular cases. We find but little difficulty in this case. The evidence leaves no doubt whatever that under the terms of the contract with Stewart for providing the materials and constructing the sidewalk he was an independent contractor. The contract called for a completed sidewalk, the construction of which was lawful in itself and did not necessarily involve the' commission of a public nuisance, or danger to other persons, if carefully done. No directions were given or control retained by defendant in respect to the means to be used or the methods to be adopted in accomplishing the result. It was not necessary to making the sidewalk that the stones should have been deposited in the streets, and doing so by the contractor was negligence in the execution of the work, and did not necessarily result from the character of the work contemplated by the contract.

II. The question of difficulty with us in this case is whether defendants, while engaged in the improvement of their property, owed to the city of Independence and the public the personal duty of placing safeguards around obstructions that might be placed in the streets. If so they could not lawfully shift that duty upon another so as to exonerate themselves from the consequences of its nonperformance. Pickard v. Smith, 10 C. B. (N. S.) 470; Wilson v. White, 71 Gra. 510; Water Co. v. Ware, 16 Wall. 566" court="SCOTUS" date_filed="1873-04-28" href="https://app.midpage.ai/document/water-co-v-ware-88708?utm_source=webapp" opinion_id="88708">16 Wall. 566; Railroad v. Morey, 47 Ohio St. 207; Woodman v. Railroad, 149 Mass. 339.

But we know of no principle of law that imposes a legal obligation upon the owner of property adjacent to a public street to see that no obstructions to travel are placed or suffered to remain thereon, nor is there evidence of a contract with, or license from, the city which placed defendants under ány peculiar obligation to keep the street secure while they were improving their property. Defendants were, of course, responsible for what they did themselves or directed others to do, but the contract in question did not necessarily, or, probably, involve the commission of a nuisance, and can not, therefore, be construed as a direction by .defendants to commit the negligent acts of which complaint is made. They had the right to make the contract, and to believe that the work would be done carefully in all respects, and after they had committed it to Stewart, duty did not require them to interpose, and see that the methods adopted were careful and proper.

There are some old English cases which hold generally and broadly that “the person from whom the whole authority is originally derived is the person who ought to be answerable” whether the person who did the work were the servant or an independent contractor of the employer. Bush v. Steinman, 1 B. & P. 404. This rule was followed for a time in Massachusetts. Lowell v. Railroad, 23 Pick. 24. But it is now well settled in this country as well as in England, as a general rule, that one person is only liable for the act or negligence of another when the relation of master and servant exists between them. 1 Beven on Neg. [2 Ed. ], pp. 718, et seq. The facts bring this case within no recognized exception to this rule.

III. Error is assigned in not permitting the deposition of Murphy to be read.

This deposition tended to prove that Murphy, who had the contract for the erection of the buildings, volunteered to look after the construction of the sidewalk. We are unable to give his deposition a meaning broader than that he would see that, the quality of the work, the general result, was in compliance with the contract. Supervision to this extent the defendants themselves had the right to retain and exercise, and the deposition does not affect in the least the relation of defendants to Stewart. Larson v. Street R’y Co., 110 Mo. 234" court="Mo." date_filed="1892-05-09" href="https://app.midpage.ai/document/larson-v-metropolitan-street-railway-co-8010508?utm_source=webapp" opinion_id="8010508">110 Mo. 234. The evidence is entirely consistent with the theory that Stewart was an independent contractor. Defendant was not prejudiced by the rejection of the deposition, though it might have been competent, which we do not decide.

The nonsuit was properly ordered, and the judgment is affirmed.

All concur.