24 App. D.C. 59 | D.C. Cir. | 1904
delivered the opinion of the Court:
There is but the single question presented on this appeal, whether there was evidence sufficient to require the c'ase to be submitted to the jury for their consideration. We think the case should have been submitted to the jury. Whatever the court may have thought of the weight of the evidence produced by the plaintiff, there was certainly some evidence bearing upon the questions involved, as to all the defendants, which would have justified a rational conclusion as to their liability. And, this being the case, the evidence should have been considered by the jury. Whether there was contributory negligence on the part of the plaintiff in producing the injury complained of was
The question of the right of the municipal corporation of the District to construct the sewer, arid of the right to contract for the execution of the work, though to occupy the bed of the public streets, can admit of no doubt. The opening and construction of the sewer in this case was done under and by an express authority of Congress. But this authority did not excuse the municipal government from the duty of exercising due and reasonable care in the execution of the authority conferred by Congress. In the construction of the sewer along or under the public streets of the city, the municipality was bound to erect and maintain suitable railings or other barriers, where a dangerous place existed in such close proximity to the highway or street as plainly to make the way unsafe for travelers, exercising ordinary care and prudence, while traveling on the street cars along said sewer. The question whether a railing or barrier placed along the same is suitable and sufficient to afford safety to passengers on the cars is ordinarily a question of fact for the jury. Norris v. Litchfield, 35 N. H. 271, 69 Am. Dec. 546; Murphy v. Gloucester, 105 Mass. 470; Gillespie v. Newburgh, 54 N. Y. 468; Lyman v. Amherst, 107 Mass. 330. And the fact that the dangerous object which caused the accident was permitted to exist by the municipal authorities contrary to law, or that its existence was a cause which, conjoined with other causes illegally existing, produced the accident, may be evidence to charge the municipal corporation with liability for such accident, although the object in question was not actually in the highway or street. Bieling v. Brooklyn, 120 N. Y. 99, 24 N. E. 389. And whenever a barrier or guard rail is erected along or over an excavation in the street or near thereto, it should be of such a character and placed
The principle is well established that where an independent contractor, in performing his contract with the municipal corporation, makes holes or excavations in the street, or places obstructions therein, and by reason of his negligence a traveler is injured, the municipality may be made responsible in the first instance, or jointly with such contractor. Robbins v. Chicago, 4 Wall. 657, 678, 18 L. ed. 427, 432. In all such cases, the question is whether the municipal authorities have the right and power to interfere so as to prevent what is being negligently done, and if they have no such power there will be no responsibility of the municipality. Jones v. Waltham, 4 Cush. 299, 50 Am. Dec. 783. But the general liability of the corporation will not be limited by mere implication. Pollard v. Woburn, 104 Mass. 84; Charlock v. Freel, 50 Hun, 395, 3 N. Y. Supp. 226.
It is argued that, as the railroad defendant had nothing to do with the erection of the obstruction in the street or along the sewer that produced the accident, therefore it cannot be held responsible for the consequences of the accident. But this argument puts out of view the fact that the railroad company must be taken to have known of the existence of the obstruction and the peril created thereby to its passengers who were allowed to ride on the running or foot board of its cars. The testimony shows that it was carrying, at the time of the accident, several passengers beside the plaintiff, who were allowed to ride on the foot board of the car, and that the plaintiff was not the only one of these passengers who was struck or brought in collision with the obstruction that produced the accident to the plaintiff. The testimony of the plaintiff is quite clear upon this subject. He admits that he knew of the existence of the erection of the obstructive object along the sewer on the side of the railroad, but he had only noticed it from a distance, and did not know of the dangerous proximity in which it stood to the road. He
The railroad defendant was bound to use all needful care to carry its passengers safely, including the plaintiff, and to avoid exposing them to unusual risks; and with knowledge of the position of the erection in near proximity of its road, and to the cars moving thereon, which knocked off the plaintiff, it should not have allowed the plaintiff, or any other passenger, to ride on the foot board of the car, and thus to incur the peril of being struck and knocked off. It is true, the plaintiff, by taking a position and riding on the running or foot board of the ear, incurred the ordinary risk of such a position, which was greater than that of being inside the car, but to ride on the foot board of a street car does not constitute negligence in law, which would justify the court in directing the jury that such act of itself was sufficient to convict the plaintiff of contributory negligence, and to defeat his right to recover for the injuries suffered by him. Under the facts of this case, we do not think the court could declare,.as matter of law, that the plaintiff was chargeable with the special knowledge of the particular risk or danger in doing what he saw that others were allowed to do, and which he might reasonably suppose was being done with the knowledge and consent of those in charge of the cars. We think the testimony of the plaintiff himself, with that of the other witnesses examined on his behalf, presented such state of case as made it proper that it should have been submitted to the jury. The erection on or along the edge of the sewer, and which caused the injury, had been placed there as a barrier, and we may well presume was placed there by the
We must reverse the judgment and remand the cause for new trial; and it is so ordered.
Judgment reversed and cause remanded.
Independent Contractor. — As to liability of employer for acts of independent contractor, see the full presentation of the authorities in the following editorial notes: General rule as to absence of liability of employer for torts of independent contractor, note to Salliotte v. King Bridge Co. 65 L. R. A. 620; liability of employer where injury is direct result of the work contracted for, note to Thomas v. Harrington, 65 L. R. A. 742; liability of employer for injuries caused in the performance of work which is dangerous unless certain precautions are observed, note to Jacobs v. Fuller & H. Co. 65 L. R. A. 833; liability of employer for injuries occurring in performance of work where employer’s own act is a proximate cause of the injury, note to Louisville & N. R Co. v. Tow, 66 L. R. A. 941; liability of employer where injuries result from nonperformance of absolute duties, note to Anderson v. Fleming, 66 L. R. A. 119; persons deemed to be independent contractors within meaning of rule relkv’ng employer from liability, note to Richmond v. Sitterding, 65 L. R. A. 455.