122 Cal. 400 | Cal. | 1898
This is an action for personal injuries sustained by the plaintiff by reason of his falling through a sidewalk in front of a certain lot in the city of San Francisco, belonging to defendant, which sidewalk is alleged to have been in a dangerous condition by reason of defendant’s negligence. The sidewalk was a temporary affair in use during the progress of the erection of a building for defendant upon the lot of land fronting thereon. At the time of the accident the building was in - process of erection by three contractors, one contractor for the plumbing, one for the excavating, brick, concrete, and iron work, and the third for the carpenter work, plastering, et cetera. There appears to be no material difference in the testimony of the various witnesses as- to the occasion of the defect in the sidewalk. It was caused in the following manner: The excavating contractor had built a temporary sidewalk in front of the building and made excavations thereunder. This sidewalk was securely fastened and properly constructed in all ways. Subsequently, the plumbing contractor, at the request of the plumbing inspector of the city, and for the purpose of examining the fitness of the work under the sidewalk, took up two boards thereof. Within fifteen or twenty minutes thereafter this plaintiff, while passing by, fell through the opening thus made and received serious injury.
Plaintiff first insists that the bill of exceptions found in the record was not served in time. The time to serve this bill expired upon June 7th, unless an order made by the judge upon June 8th extended it an additional ten days. That is, the time expired upon June 7th, unless the fact that the 7th being Sunday gave appellant an additional day upon which to serve the bill. And that the law did give the appellant an additional day upon which to serve the bill there can be no question. If a bill served. upon the 8th had been in time (and that must be conceded under section 12 of the Code of Civil Procedure), then the court ihad the power upon that day to extend the time. The court
It is insisted by respondent that these contractors were servants of the owner and not independent contractors, and therefore their negligence was his negligence, and consequently rendered him liable for the injuries received. This contention presents an important question in the case, for if these contractors were independent contractors, they were not the servants of the owner, and he could not be held liable for their negligence. The contracts entered into by the owner with these men provided that the work should be done “under the direction and to the entire satisfaction of the architects”; that the owner should have the right at any time during the progress of said building “to make any alterations, deviations, additions, or omissions from the said contract,” and the cost of the same should be added to or deducted from the amount of said contract price, as the case may be, by a fair valuation by the architect. Upon these provisions respondent rests his contention that the parties erecting this building were not independent contractors, but servants of
It is next contended that the opening in the sidewalk was a nuisance per se, and defendant, having caused it, was liable for the injury resulting. A sufficient answer to this contention is found in the fact that defendant did not cause or create the opening, but, upon the contrary, it was made by the independent contractor. There is nothing in the record to indicate that the opening in the sidewalk was made with the consent of the owner, or even with his knowledge. Even if it be conceded that the architect, as the agent of the defendant, must have known that the plumber, in order to do his work beneath the sidewalk, would be compelled to make an opening therein for the purpose of egress and ingress, still these facts do not bring the case within the principles of law laid down in Colgrove v. Smith, 102 Cal. 220. The law as there declared is not applicable, for here the making of the opening in the sidewalk was purely collateral to the subject matter of the contract. This case would be no different in principle if this opening had been a trapdoor in the sidewalk, and had been negligently left open by the plumber in going to or from his work.
The trial court refused to give the jury the following instruction: “While it is the duty of the defendant to keep the
It is suggested that this instruction was refused upon the authority of Spence v. Schultz, 103 Cal. 208; but that ease does not justify its refusal. The facts differ widely from the facts of this case. If there had been no sidewalk in this case,, and plaintiff had fallen into the excavation made by the excavating contractor, then the two cases would probably have stood upon common ground. But here, as already suggested, the excavation was not the direct and proximate cause of the injury. The owner of property fronting on the street is not an absolute guarantor that no opening may be found in his sidewalk. The law does not demand that he shall guard his sidewalk at night lest some evildoer shall make an opening therein to the great danger of the belated traveler. Before liability attaches to the owner in such a case he must have known of its defective, condition, or, as a careful, prudent man, should have known it. In the present case, the defendant did not know of the opening in the sidewalk; the evidence also discloses that it had been made but ten or twenty minutes when the accident occurred. In this state of the evidence such instruction was entirely proper to be given to the jury.
The trial court instructed the jury as follows: "If the plaintiff has substantially shown you, so that your minds and consciences are clear on that point, that there was no contributory negligence on his part, then Mr. Frassi should recover damages in this ease, because, as I shall presently instruct you, it is the law in this state and in this city, both by ordinance and by decision, that a man who owns property is responsible for a dangerous condition of the sidewalk—a temporary sidewalk at least—as was the fact in this case.”
In view of what has already been said, it is apparent that this instruction should not have been given.
For the foregoing reasons the judgment and order are ref-versed and the cause remanded.
Harrison, J., and Van Fleet, J., concurred.
Hearing in Bank denied.