103 P. 886 | Cal. | 1909
Plaintiff and respondent was a locomotive engineer employed by the Atchison, Topeka and Santa Fe Railroad Company. While his engine was temporarily in charge of the trainmaster, but while Luce was on board, the locomotive was derailed on one of the streets of the city of Pasadena by some earth that had been piled on the track by workmen engaged in grading the street. The accident caused serious injury to plaintiff and judgment in his favor was rendered against the appellant, who was the contractor to whom permission of the city council of Pasadena had been given to pave with asphalt the street on which the railroad *163 track was located. This appeal is from the judgment and from an order denying a motion for a new trial.
Appellant was the contractor for private owners. His contract was for paving all of the street except that portion occupied by the railroad track and two feet on either side of it. The actual grading was in charge of subcontractors. Defendant testified that he had nothing to do with the manner in which these subcontractors performed their work. At the time plaintiff received his injuries the graders were using a plow and their operations had caused some of the loosened earth to fall on the track.
The one question presented for our consideration is whether or not the contractor, Holloway, may be held liable for an injury due to the negligence of the subcontractors. Undoubtedly the general rule is that one who contracts to perform certain work, lawful in itself and not inherently injurious to another, is not responsible for the negligence of a subcontractor engaged in executing the work under an independent contract. Appellant's position is this: The subcontractors were employed to grade the street to a line two feet from the track on either side. To perform this work there was no necessary entry upon that portion of the railroad company's right of way covered by its track, nor any compulsion upon the graders to use that space for depositing loose earth. Therefore, appellant maintains, the act which resulted in the injury of plaintiff was collateral to the main work then going on and could not have been anticipated by appellant. In California, we are undoubtedly committed to the general rule for which appellant contends. For more than fifty years, since the decision in the case of Boswell v. Laird,
In considering these propositions, let us first examine the ordinance under which, by the terms of his license, appellant was to conduct the work of paving the street. The material part of it was as follows (the italics being ours):
"The contractor will be required to observe all the ordinances of the city council, in relation to the obstruction of streets, keeping open passageways and protecting the same where they are exposed or would be dangerous for public travel. . . . Allrailroad tracks, gas or water-pipes, connections, electrical conduits, tubing or underground structures of any character belonging to the city or others, shall be properly protected and the contractor shall be responsible for any damage that may be caused by negligence or carelessness on the part of his employees."
Other cautionary measures are enjoined on the contractor and the conclusion seems inevitable that personal duty of an unassignable character was laid upon him. In other words, he is brought squarely within the doctrine of Colgrove v. Smith,
The same doctrine has been frequently enunciated, notably in the well-considered case of Woodman v. Metropolitan Railroad Co.,
"In some cases a party is liable notwithstanding the intervention of an independent contractor lawfully employed. A plain case is when he is made personally responsible by statute for the prevention of the cause of the damage complained of.(Gray v. Pullen, 5 B. S. 970.) Thus it is settled in many states that a city charged with the duty of keeping the streets in repair is answerable for an improperly guarded excavation made by a contractor; for instance, in building a sewer. (Storrs v.Utica,
Many authorities have been cited to the same effect and it is clearly the settled law in many jurisdictions, including California, that the doctrine respondeat superior applies in cases like this.
Appellant insists that, even granting that the subcontractors are his agents, so far as his relations with the public are concerned, nevertheless he cannot be held liable for the consequences of their collateral act in piling the dirt beyond the limits of that part of the street upon which they were employed to work. There are two answers to this argument: 1. The usual method of loosening the earth in the street by a plow, the nearness to the rails of part of the area to be thus excavated, and the necessity for taking the plow sometimes across the track, all combined to make it probable that, unless vigilance should be exercised, dirt might be left on the track; and it was appellant's duty to see that the work performed under his license should be so executed as to wrong no one; 2. By the express terms of the ordinance of the city of Pasadena which, in his application for permission to do the paving on the street where the accident afterwards occurred, appellant promised to obey, he was bound properly to protect the railroad track. *167
The judgment and order from which this appeal is taken should be affirmed and it is so ordered.
Lorigan, J., and Henshaw, J., concurred.
Hearing in Bank denied.