5 Neb. 136 | Neb. | 1876
The city of Lincoln brought its action in the district court of Lancaster county, against A. L. Palmer, to recover of him the amount of a judgment, interest, and costs, recovered by Humphrey D. Gilbert against said city. The petition alleges that “ the plaintiff is a city of the second class; that Alfred L. Palmer was, on or about the first day of October, 1873, and at the time the injuries received by Humphrey D. Gilbert hereinafter stated, the owner of lot seven in block fifty-six in the city of Lincoln; that said lot is situated on and fronts on O street, one of the public streets of said city; that
The plaintiff in error (defendant in the court below) admits in his answer to the petition that the defendant in error is a corporation; “ that he was the owner of lot seven in block fifty-six at the time alleged in the petition; admits there was an excavation on O street in front of said lot, but denies that he had wrongfully made said excavation, or that he wrongfully suffered said excavation to remain uncovered or unguarded, or that he had in any way or manner suffered said excavation to remain uncovered or unguarded; and he denies that he had any control over or about said excavation at the time said Gilbert fell into the same, or that he ever had any control over or about the same; admits that said Gilbert fell into said excava
To this answer a demurrer was filed on the ground that the facts stated therein were not sufficient to constitute a defense to the action. The court sustained the demurrer and rendered judgment for the plaintiff. The defendant, Palmer, brings the.case into this court by petition in error. The errors assigned are:
Second. That the court erred in rendering judgment for the defendant in error against the plaintiff in error, upon the pleadings, for the sum of $1,388.40 damages and costs of suit.
The plaintiff in error insists that having let the contract to make the necessary excavation, and for the erection of a building on the lot in question, to competent and skillful contractors, such contractors not being under his direction or control, he is, therefore, not liable to third persons for injuries sustained by them in consequence of the negligence of the contractors in the prosecution of the work. All the cases to which our attention has been called hold the principal liable where the relation of principal and agent or master and servant exists; but there is a direct conflict of authority, particularly in the earlier cases, as to such responsibility where an independent contractor intervenes. In Clark v. Frye, 8 Ohio State, 379, a case somewhat similar to this, the court held that the rule of respondeat superior could arise only out of the relation of superior and subordinate, and that the reason of the rule is to be traced to the power of control and direction which the superior has a right to exorcise, and which for the safety of others he is bound to exercise, over the acts of his subordinates; but the court held that this rule of liability did not apply in case of injury sustained by reason of negligence in the manner of conducting the execution of a job of work in building a house, where the builder by the contract had taken upon himself the responsibility of the employment of his own hands, and the control and direction of the work, in conformity with the terms of the contract. The reasoning by which this able court reached this conclusion appears to have been this: That as Clark
In Scammon v. Chicago, 25 Ill., 424, the court held that if the nuisance necessarily occurs in the ordinary mode of doing the work, the occupant or owner is liable; but if it is from the negligence of the contractor or his servants then he alone should be responsible. The court in that case assumed that the contractor or his servants were negligent, and therefore there could be no recovery.
In Hilliard v. Richardson, 3 Gray, 349, the owner of a building contracted with a carpenter at an agreed price to furnish the material and repair it. The carpenter employed a teamster to haul lumber, who left it in the middle of the street in front of the lot, and in consequence thereof an accident occurred. The court held that it was not a nuisance erected by the owner of the land or by his license to the injury of another.
In Storrs v. Utica, 17 New York, 108, the court say: ‘The cause of the accident therefore was not in the manner in which the work was carried on by the laborers; if it had been, their immediate employer, and ha
The law on this subject is thus summed up in Robbins v. Chicago, 4 Wall., 679: “Where the obstruction or defect caused or erected in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.” See, also, Chicago v. Robbins, 2 Black, 418.
The plaintiff in error endeavors to shield himself from liability by setting up the contract with Denny and Doolittle for the erection of a building on the lot in question, claiming that they had exclusive control of the premises at the time; so far as appears from the
It is objected that tbe court erred in rendering judgment for costs. The answer admits tbat “ Gilbert recovered judgment against said city for $1000.00 and for his costs.”
We see no error in the ruling of the court. The judgment is affirmed.
Judgment affirmed.