122 Iowa 720 | Iowa | 1904
The defendant, Mrs. Shockley, procured a building permit from the proper city authorities for the erection of a dwelling house on her lot abutting upon a paved
The sole question necessary to consider is whether, under the facts, as to which there is practically no dispute, defendant is liable for what may be conceded to have been the negligence of Wynburn in allowing the pile of sand to remain in the street unguarded, and in such condition that plaintiff, in the exercise of reasonable care, drove his buggy upon and over it, and the injury complained of resulted proximately therefrom. It is clearly established by the evidence that Wynburn was an independent contractor, and it is unnecessary to cite authorities to the general proposition that one
Such a state of facts was held in Bush v. Steinman, 1 Bos. & P. 404, to render the owner of the premises liable, and if the doctrine there announced has been adhered to in subsequent decisions, and remains a correct exposition of the law, then the judgment against the defendant is well founded. As the case cited is typical, it will facilitate the discussion to quote the statement of facts from the report: “The defendant, having purchased a house by the roadside (but which he had never occupied), contracted with a surveyor to put it m repair for a stipulated sum; a carpenter, having the contract under the surveyor to do the whole business, employed a bricklayer under him; and he, again, contracted for a quantity of lime with a lime burner, by whose servant the lime in question was laid in the road.” Under this state of facts, the Lord Chief Justice of the English Court of Common Pleas, before whom the case was tried, was of opinion that the defendant was not answerable for the injury sustained by the plaintiff by reason of the lime being piled in the highway. But to get the case before the full bench, a verdict was taken for the plaintiff, with leave to defendant to move for a non-suit. After full consideration, the court agreed that the action could be maintained, although the chief justice still entertained doubts'as to the precise principle on which the verdict should be sustained. The rule adopted by the court is
The contention of counsel for the appellee seems to be this: Defendant should have known that the carrying on of tire work by the contractor would involve the deposit of sand in the street, and, while this would not necessarily and of itself constitute a nuisance, it might become a nuisance by reason of failure to properly guard it or warn against it, and the defendant should have taken pains to see that the contractor took proper precautions. But such an argument, if acceded to, would require conclusions which are wholly untenable. The defendant must have known that it would be necessary for the contractor to drive his wagons along the street in front of defendant’s premises, and thereby, to some extent, obstruct the use of the street while they were being unloaded. And yet could it be claimed that the negligence of the contractor in so driving his wagons or managing them as to injure persons using the street would render the defendant liable ? „ The street was a public highway, and the contractor used the street in carrying out his contract subject to' the same limitations as those-imposed upon others in the use of a public highway. But it was not the concern of the defendant how the contractor used the street, nor did defendant have any control over the use which the contractor should make of the street. He might, perhaps, have gotten permission to
The conclusion which we reach — that defendant was not chargeable with the consequences of the contractor’s negligence — is supported by the great weight of authority. For instance, in Wright v. Big Rapids Door & Blind Mfg. Co., 124 Mich. 91 (82 N. W. Rep. 829, 50 L. R. A. 495), it was held that a property owner was not liable for the act of an independent contractor in negligently'piling lumber near the owner’s premises. In Sanford v. Pawtucket Street R. Co., 19 R. I. 537, (35 Atl. Rep. 67, 33 L. R. A. 564), it was held that the defendant, a street car company, was not liable for negligence of an independent contractor in stretching a rope or wire across a public street in the construction of the road. In Leavitt v. Bangor & A. R. Co., 89 Me. 509 (36 Atl. Rep. 998, 36 L. R. A. 382), it was held that the defendant company was not liable for damages by fire communicated from the cooking car used by an independent contractor engaged in cutting wood for the company, although the car
In the view which we take of the case before us, the authorities relied on by appellee are not in point. They are cases where a person is charged with maintaining premises in a safe condition for others — as, for instance, where the owner of a building is required to have his premises safe, or a city, having control of its streets, is required to maintain them in a safe condition for the use of the public. If the thing contracted to be done involves, as a direct consequence, a danger which the owner of the premises or the city is bound to avoid or to provide against, then the delegation of the work to an independent contractor will not relieve from liability
The trial court therefore erred in submitting the case to the jury on the theory that the defendant was liable for the negligence of Wynburn in not sufficiently protecting the public, including the plaintiff and his wife, from the danger incident to putting the pile of sand in the street in front of defendant’s premises, and leaving it unguarded.
Counsel for appellee urge the insufficiency of the notice of appeal, on the ground that no appeal was perfected at tlie term of the Supreme Court to which,, by the terms of the