1. Parties having notice of the pendency of a suit in which they
are directly interested must exercise reasonable diligence in
protecting their interests, and if instead of doing so they
willfully shut their eyes to the means of knowledge which they know
are at hand to enable them to act efficiently, they cannot
subsequently turn round and evade the consequences which their own
conduct and negligence have superinduced.
2. The term "parties" as thus used includes all who are directly
interested in the subject matter and who had a right to make
defense, control the proceedings, examine and cross-examine
witnesses, and appeal from the judgment.
3. Express notice to defend is not necessary in order to render
a party liable over for the amount of a judgment paid to an injured
plaintiff. If the party knew that the suit was pending and could
have defended it, he
is concluded by the judgment as to the amount of the damages.
Chicago City v.
Robbins, 2 Black 418, affirmed.
4. Absence of objection by municipal officers to a person's
building an area in a public sidewalk may infer a permission to
build the area, but cannot infer a permission to leave it in a
state dangerous to persons passing by.
5. A person building a storehouse on a street, who, in
consequence of the city's raising the carriage way of the street,
raises a sidewalk so as to make it conform to the grade of the
carriage way -- such person obtaining by his mode of raising the
sidewalk, vaults and an area for the benefit of his building --
does not do a public work nor relieve himself from the penalty of
making a nuisance if a nuisance is made by what he does.
6. In a suit caused by a person's falling into an area in a
public sidewalk, a declaration charging that the defendant
"
dug, opened, and
made," the area is sustained by
proof that he formed it partially by excavation and partially by
raising walls.
7. Where work done on a public highway necessarily constitutes
an obstruction or defect in the highway which renders it dangerous
as it way for travel and transportation unless properly guarded or
shut out from public use, in such case, a principal for whom the
work was done cannot defeat the just claim of a municipal
corporation which has had to pay
Page 71 U. S. 658
damages, or of a private party who has suffered injury, by
proving that the work which constituted the obstruction or defect
was done by an independent contractor.
Chicago
City v. Robbins, 2 Black 418, affirmed.
This was an action on the case brought by the City of Chicago
against Robbins. The declaration alleged that the city had by law
exclusive control over the public streets and was bound to protect
them from encroachment and injury. That Robbins owned a lot on the
corner of Wells and Water Streets, and wrongfully
"dug, opened,
and made" an area in the sidewalk adjoining, and left it so
unguarded that one Woodbury fell into it and was severely injured;
that Woodbury had recovered for his injuries $15,000 damages
against the city, which sum the city had paid, and which, though
the city had been primarily liable for it, Robbins was bound to
refund. Plea, the general issue.
The case was this:
Robbins owning an unimproved lot at the southeast corner of
Wells and Water Streets in Chicago, contracted, in February, 1856,
with one Button to build a storehouse on it, Button's principal
work being the masonry and there being seven different contractors
on the building in all, on different parts of it. The whole was
under charge of an architect appointed by Robbins, the duty of
which person was to see that the work was done according to
contract.
The city had, in 1855, ordered the grade of Wells Street to be
raised about seven feet and the carriage way to be filled with
earth. This improvement -- as Robbins wished to have vaults to his
new store -- rendered necessary a curb wall from the natural
surface of the ground to the height of the grade. By its position
-- about sixteen feet from the building -- this wall would give, so
far as the space beside it was covered over (an extent of about
eleven feet), a vault for storage, and where open -- as five feet
would be left by another or area wall -- an area immediately
adjoining the edifice, by means of which light and air would be
given to it. Encroachments
Page 71 U. S. 659
on the street to the width of five feet were apparently
allowable by the city ordinance.
In making this area, there was some
excavation or digging
away of the natural soil, but the testimony of Button tended
to show that what earth was thus removed was replaced by sand and
other material used in flooring the space, and that the principal
space was procured by the raising of the street and the erection of
the wall and the edifice beside it. The depth of the space was
seven or eight feet.
By his contract, Button was to be liable for any violation of
the city ordinances in obstructing the sidewalks or for accidents
arising therefrom, but there was no specific provision that he or
any other contractor should provide proper lights or guards. There
were lamps at a bridge not very far off, and one at an alley
sixty-four feet from the area.
Possession of the ground was given to Button on the 1st of
April, 1856, and the excavation and walls making the space were in
effect raised some time during the spring, the city about the same
time filling the carriage way with earth.
Button, by the terms of his contract, was to finish his work by
the 1st September, 1856, but he did not in fact complete it till
February, 1857. However, the sidewalk -- eleven feet -- which was
made by broad flagging stones placed over the two walls, was
finished in the autumn; the area, which was intended to be covered
with iron grating and which when so covered would have been thrown,
in a manner, into the sidewalk, not being as yet so covered.
In all respects, however, except this protection of grating to
passers by, the area, it seemed, was substantially finished and
ready to be covered by grating before the 19th of December. With
the grating Button had nothing to do, that being a matter, with the
rest of the iron work of the building, contracted for by another
person.
From the time that the area was made until the grating was put
there, it was covered, as the whole space, before the sidewalk was
completed, by laying flagging, had been,
Page 71 U. S. 660
more or less by joists, the covering being sometimes very
slight, and the area -- which ran along the whole side of the
building, one hundred and fifty feet -- sometimes wholly
uncovered.
Robbins was in Chicago, and during the summer and early autumn
occasionally at the building. Later in the season, when ice was on
the sidewalk, the city superintendent spoke to him about the
dangerous condition of the area; suggested a mode in which, at a
small cost, it could be made safe; telling him, at the same time,
that if it happened any time to be sleety, and people should be
passing by his building rapidly, and the covering was not attended
to, somebody would be hurt -- "a neck or a leg broke" -- and the
city have damages to pay.
To this Robbins replied, that it was "more the contractor's
business than his," or was "wholly the contractor's business," but
that he would speak to him. Previously to this, the chief clerk of
the superintendent's office, by direction of the superintendent,
had written to Robbins, giving him notice of the dangerous
condition of the place, and the clerk and superintendent, who were
often in that neighborhood and were struck with this condition, had
themselves once or oftener covered it with plank. The contractor
was told about it also, and he spoke several times to his foreman
on the subject.
On Sunday evening, December 28, 1856, the night being stormy,
Woodbury, who was passing the place and in walking had to face the
storm, fell down the area, which had been left or had become
uncovered from Saturday night, and was severely hurt. He soon after
brought suit against the city for damages.
The city attorney, Mr. Marsh, whose duty it was to defend the
suit, now applied to Robbins to assist him in procuring testimony.
Robbins told him of one Livingston, who had boarded at the same
place with Woodbury at the time of the accident, whose idea was
that Woodbury's injuries were not so great as he pretended, and who
would therefore be a good witness for the city. Robbins
promised
Page 71 U. S. 661
to write to him, and afterwards informed Marsh that he had done
so. The day of the trial or the day before it, Marsh, casually
meeting Robbins at the foot of the stairway of the courthouse,
remarked to him that the suit was about to be tried or was coming
on, but he did not tell him in what court the suit was, nor did he
ever give Robbins any notice that the city would look to him for
indemnity for what it might have to pay Woodbury, he "never having
talked with Robbins in reference to the case with any such idea as
that," the only object being to prepare the defense. Marsh did not
state to Robbins that be was the city attorney, but the parties
were long and intimately acquainted with each other, meeting almost
daily, and Marsh presumed as of course that Robbins knew that
fact.
Woodbury recovered in his suit $15,000 damages, which the city
paid.
A provision of the city charter in force at the time when
Robbins built his area declared that
"All owners in front of whose premises the common council should
direct sidewalks to be constructed should make such sidewalks at
their own cost, and if not so made, that the council might make
them and assess the cost against the premises."
The controversy had already been before this tribunal, when a
judgment in favor of Robbins had been reversed. [
Footnote 1]
The court below now charged the jury, in substance, as
follows:
"The law is that although the city is primarily liable for an
injury suffered by reason of the dangerous condition of the streets
and sidewalks, yet the corporation has a remedy over against the
party that is in fault and has so used the streets and sidewalks as
to produce the injury."
"The question then is whether Robbins is answerable to the city
for the judgment recovered by Woodbury."
"If it was through the fault of Robbins that Woodbury was
injured, he is concluded by the judgment recovered against the
Page 71 U. S. 662
city if he knew that the suit was pending and could have
defended it."
"It is not necessary that the city should have given him an
express notice to defend the suit, nor is it necessary that the
city should have notified him that it would look to him for
indemnity. If Marsh, the attorney for the city, told him of the
pendency of the suit, what it was for, told him of the day of the
trial, and talked to him about the testimony of a witness, he is as
much chargeable with notice as if he had been directly told that he
could contest Woodbury's right to recover and that the city would
look to him for indemnity."
"It is not requisite that Marsh should have informed him that he
was city attorney. If Robbins knew the fact, he did not need to be
informed of it."
"It is urged that Robbins was not informed by March in what
particular court the action was pending. This was not necessary.
When Robbins was told that Woodbury had sued the city for falling
into an area which he had built, then it was his duty to have
ascertained in what particular court the action was to be
tried."
"Was it through the fault of Robbins that the accident to
Woodbury happened? The building was commenced in the spring of
1856. The grade of Wells Street had been ordered to be raised by
the city, but was not actually raised until the summer of 1856.
There is testimony tending to show that when Robbins removed the
old sidewalk, which was on the natural surface of the ground, he
removed very little earth in order to make this area. There is also
testimony tending to show that what earth he did remove was
replaced by sand and other materials, and it is contended that
although he might be liable if there were proper allegations in the
declaration, yet he is not liable in this suit, because the
declaration says that he wrongfully and unjustly dug a large hold
or pit, and the digging, if any was done, did not contribute to
produce the injury. But if the declaration charges him with digging
a large hole or pit, it also charges him with opening and making
one, and in the opinion of the court it is immaterial whether the
area was made by excavating the earth as stated by some of the
witnesses, or in the manner mentioned by Mr. Button, the
contractor. Robbins was not in fault in making the area so as to
conform to the grade of the city, and the city was not in fault in
permitting
Page 71 U. S. 663
him to build it. Robbins had the implied license of the city to
build the area, but no license can be presumed from the city to
leave the area open and unguarded."
"The fact that Robbins was building the area at the same time
that the city was grading the street does not excuse him or show
that the city was in any degree delinquent. Robbins impliedly
agreed with the city that if he were permitted to build the area
for his own benefit, he would do it in such a manner as to save the
public from danger and the city from harm. The gravamen of the
offense is not that Robbins was engaged in an unlawful work when he
made the area, but that he left uncovered and unprotected an area
which was dangerous and which, if left without guards to warn those
who passed by, became a nuisance; what was originally lawful
thereby became unlawful. The city cannot be held under any
obligation to supervise the building of an area like this under the
circumstances detailed in the evidence."
"If the jury believe that this area was built under the
direction of Robbins and for his benefit, and that it was left
unprotected, and that Woodbury, while passing along the street,
fell into it and was injured, then the jury will find the amount
Woodbury recovered against the city, with interest."
To so much of the charge as related to the notice to Robbins of
the pendency of the suit of Woodbury against the city and "to so
much of the charge as related to the construction of the area" the
defendant excepted.
Page 71 U. S. 670
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Municipal corporations having the care and control of the public
streets within their limits are obliged by the laws of the State of
Illinois to keep the same in good repair "for the passage of
persons and property," and in case of neglect, any person receiving
injury in consequence of any obstruction or defect may have an
action on the case to recover compensation for such injuries.
Statutes to that effect exist in most of the states, but the
principle is now well settled that in all cases where it appears
that the obstruction or defect which occasioned the injury was
caused, constructed, or created by a third person, the corporation,
if it was without their concurrence, may have a remedy over against
the party immediately in fault.
Severe injuries were received by one William H. Woodbury on the
twenty-eighth day of December, 1856, while passing over Wells
Street, within the limits of the plaintiff corporation. He sued the
corporation in the state court to recover compensation for the
injuries so received. Declaration alleged that the defendant in
this suit was the owner of a building lot fronting on that street;
that in making improvements thereon, he wrongfully excavated an
area in the sidewalk in front of his lot and adjoining the same of
great length, width, and depth, and wrongfully suffered it to
remain
Page 71 U. S. 671
uncovered and unguarded, so that the injured party, while
passing over the sidewalk during the night of that day and while in
the exercise of reasonable care and prudence, fell into the
excavation and was greatly injured. Parties went to trial in that
suit at the June Term of the court in 1857, and judgment was
rendered for the plaintiff in the sum of fifteen thousand dollars
damages and costs of suit, which the corporation was compelled to
pay.
Present suit was an action on the case to recover of the
defendant, as the party who constructed, caused, or created the
obstruction or defect in the street, the amount of that judgment
and the expenses of the litigation. Gravamen of the charge in the
declaration was that the defendant made the excavation and
negligently left it open and unguarded, and that the injury to the
plaintiff in the suit against the corporation was caused by that
obstruction or defect, and that the defendant, by reason of the
premises, became and was answerable over to the plaintiffs in this
suit for the amount of that judgment and for their reasonable
expenses in defending the action. Plea was the general issue, and
the verdict and judgment at the first trial were for the defendant.
Corporation plaintiffs removed the cause into this Court by writ of
error, and the judgment of the circuit court was reversed and the
cause remanded for a new trial. Pursuant to the mandate of this
Court, a new venire was issued and the verdict and judgment at the
second trial were for the plaintiffs, and the defendant excepted
and sued out this writ of error.
Errors alleged at the trial, as stated in the bill of
exceptions, have respect to so much of the charge of the court as
relates to the notice to the defendant of the pendency of the suit
in which the injured party recovered judgment against the
corporation, and also to so much of the charge of the court as
relates to the construction of the area described in the
declaration. Exceptions were also proposed to one of the rulings of
the court in excluding certain testimony, but the objection appears
to have been waived, as it was not made the subject of any
consideration in the argument.
Page 71 U. S. 672
I. Charge of the court in respect to the notice to the defendant
of the pendency of the suit against the corporation presents the
first question for decision. Preliminary to that part of the charge
which is the subject of complaint, the court remarked that although
municipal corporations were primarily liable for injuries
occasioned by obstructions or defects in their streets or
sidewalks, they yet might have a remedy over against the party who
was in fault and who had so used the street or sidewalk as to
produce the injury. Instruction was then given to the effect that
if the defendant knew that the suit was pending and could have
defended it, and it was through his fault that the party was
injured, he was concluded by the judgment recovered against the
corporation. Express notice, said the presiding justice, was not
required, nor was it necessary that the officers of the corporation
should have notified him that they would look to him for indemnity.
Just exception certainly cannot be taken to those instructions, as
they are in precise accordance with what this Court decided in this
case when it was before the court on the former occasion. Same
principle was adopted and applied in the case of
Lovejoy v.
Murray, [
Footnote 2] in
which the leading authorities upon the subject were collated and
examined. Conclusive effect of judgments respecting the same cause
of action and between the same parties rests upon the just and
expedient axiom that it is for the interest of the community that a
limit should be opposed to the continuance of litigation and that
the same cause of action should not be brought twice to a final
determination. [
Footnote 3]
Parties in that connection include all who are directly
interested in the subject matter and who had a right to make
defense, control the proceedings, examine and cross-examine
witnesses, and appeal from the judgment. Persons not having those
rights substantially are regarded as strangers to the cause, but
all who are directly interested in the suit and have knowledge of
its pendency, and who refuse or neglect
Page 71 U. S. 673
to appear and avail themselves of those rights, are equally
concluded by the proceedings. [
Footnote 4]
Evidence in the record shows that the defendant knew that the
party was injured by falling into the excavation and that the
action against the corporation was commenced, that he was informed
of the day of trial, that he was requested to assist in procuring
testimony, and that he actually wrote to a witness upon the
subject. Testimony of the attorney of the corporation shows that he
called upon the defendant, soon after the suit was commenced, for
the purpose of finding out whether he, the defendant, knew anything
about the case which would be for the benefit of the corporation in
preparing the defense, and made inquiries of him to that effect.
Responsive to those inquiries, the defendant mentioned the name of
a person who was boarding at the same place with the injured party
and whose testimony he, the defendant, supposed would be of benefit
to the corporation. His idea was that the injuries of the party
were not as great as he pretended, and for that reason the
defendant suggested that the person named would be a good witness
for the defense, and he agreed to write and get an exact statement
of what he would testify if called and examined.
Inquiry was made of the witness if he told the defendant that he
was the attorney of the corporation, and he answered that he was
not able to say, but he further testified that he had long known
the defendant and that they were intimate acquaintances. Same
witness testified that on the day of the trial of that case or the
day before, he met the defendant in the courthouse at the foot of
the stairs and told him that the case was about to be tried.
Surely it cannot be doubted that the evidence justified the
instructions of the court, and, it might be added if need be that
it fully warranted the finding of the jury. Based on that
testimony, the court further instructed the jury that if the
attorney of the corporation informed the defendant of the suit and
its nature and of the day of the trial and conversed
Page 71 U. S. 674
with him about the testimony for the defense, he was as much
chargeable with notice as if he had been directly told that he
could contest the right of the injured party to recover and that
the corporation would look to him for indemnity in case of an
adverse result. Argument for the defendant was that the notice was
defective because the attorney did not specify in what court the
suit was pending, but the presiding justice instructed the jury
that when the defendant was told that the injured party had sued
the corporation for the injuries occasioned by his falling into an
area which he, the defendant, had built, then it was his duty to
have inquired and ascertained in what court the action was to be
tried. Knowledge of the pendency of the suit in the most authentic
form was brought home to him, and the legal presumption is that he
knew that he was answerable over to the corporation, and if so it
must also be presumed that he knew he had a right to defend the
suit. Being in the courthouse on the day the trial commenced or the
day before, and having been informed by the corporation attorney
that the case was about to be heard, the defendant cannot evade the
effect of the judgment upon the ground that he did not know in
which court the case was pending. Persons notified of the pendency
of a suit in which they are directly interested must exercise
reasonable diligence in protecting their interests, and if instead
of doing so they willfully shut their eyes to the means of
knowledge which they know are at hand to enable them to act
efficiently, they cannot subsequently be allowed to turn round and
evade the consequences which their own conduct and negligence have
superinduced. [
Footnote 5]
Decision of this Court in this case when it was here before was
that express notice to the defendant to defend the prior suit was
not necessary in order to render him liable to the corporation for
the amount of the judgment paid to the injured party; that if he
knew that the suit was pending, and could have defended it, he was
concluded by the judgment
Page 71 U. S. 675
as to the amount of the damages, and we adhere to that rule as
the settled law of the court.
II. Second exception is even more general in its terms than the
first, and might well be rejected on that account as presenting no
definite question for the decision of the court. Statement in the
bill of exceptions is that the defendant excepts to so much of the
charge of the court as relates to the construction of the area
described in the declaration, and the record shows that the part of
the charge referred to fills more than a page of the transcript,
and for the most part is merely descriptive of the circumstances
under which the area was constructed.
Purport of the description is that the defendant was engaged in
erecting a large and valuable building on his lot fronting on the
east side of Wells Street, and that he caused an area to be
constructed in the sidewalk in front of the building, appurtenant
to the same and for its convenience and accommodation.
Prior to that time, the corporation had passed an ordinance
requiring the grade of this street to be raised, and the work of
raising the grade as ordered was accomplished during the summer
preceding the accident. Change of grade in the street made it
necessary to raise the sidewalk, so that the defendant, in order to
construct the area in front of his building, was not obliged to
make much excavation.
Declaration alleged that the place for the area was excavated,
and the defendant contended that the proofs did not sustain that
allegation, as they showed that the depth of the area was chiefly
created by filling and raising the sidewalk on each side of it, and
not by excavation, as alleged. Charge of the court was that it was
immaterial whether the depth of the area was obtained in the one or
the other of these modes or by both, and we have no doubt the
charge was correct.
Material matter alleged and in issue was that the defendant
caused or created the obstruction or defect in the street which
occasioned the injury and wrongfully left it open and unguarded, as
alleged in the declaration, and if he did so,
Page 71 U. S. 676
it surely was immaterial whether he constructed it by excavation
or in the manner described by the contractor. Strong effort was
made to show in argument that the defendant, in constructing the
area, acted under the express orders of the corporation, and
consequently that he is not liable in this action. Theory of his
counsel is that inasmuch as the ordinance of the corporation
directed the grade of the street to be raised, he but executed the
orders of the corporation in doing the work. Suppose all that be
granted, still it is evident that it constitutes no defense to this
action. His authority to raise the sidewalk to the new grade is not
contested.
Neither the ordinance nor the evidence, however, shows that in
excavating or leaving unfilled the place for the area, he acted
under the directions of the corporation or that his acts were in
any way for their benefit. Absence of objections on the part of the
officers of the corporation authorize the presumption that the
defendant was not in fault in constructing the area so as to raise
the surface to the even grade of the street, and justified the
charge of the court that in constructing it, the jury might infer
that he acted under their implied license, but no license can be
presumed from that fact, or from any other evidence in the case, to
leave the area open and unguarded, which was the gravamen of the
charge in the declaration.
Instructions of the court were substantially in accordance with
those views, and were quite as favorable to the defendant as he had
any right to expect.
Remarks already made show that the defendant, in constructing
the area, was not constructing a public improvement for the benefit
of the corporation, but was constructing a private work exclusively
for his own convenience. Attempt is made to give the work a public
character because, in constructing the area, it became necessary to
raise the sidewalk to the new grade, but the argument is hardly
plausible, and is clearly without any solid foundation. Liability
of the defendant, however, was not placed upon the ground that he
was not authorized to raise the sidewalk.
Page 71 U. S. 677
On the contrary, the jury were distinctly told that the gravamen
of the charge was not that the defendant was engaged in an unlawful
work when he constructed the area, but the court placed his
liability upon the ground that he left the area open and without
guards to warn those who had occasion to pass in the street, so
that the work, which was originally lawful, became a nuisance and
was unlawful at the time of the injury. Correctness of that
instruction, in view of the evidence as reported in the transcript,
is so manifest that it needs no support.
Objection is also taken to the instruction in which the court
told the jury that if they believed from the evidence that the area
was built under the direction of the defendant and for his benefit
and that it was left open and without guards, and that the
plaintiff in the suit against the corporation, while passing along
the street, fell into the area and was injured as alleged, then
they would find for the plaintiff. Want of reasonable care on the
part of the injured party was not alleged in defense or suggested
in argument, and instructions as to notice to the defendant of the
pendency of the prior suit had been previously given to the
jury.
Argument for the defendant is that the instruction as to the
liability of the defendant was erroneous. He contends that the
evidence showed that the erection of the building and all the other
work, including the construction of the area, was done by an
independent contractor, and that the owner of the land, for whose
benefit the improvements were made, is not liable in such cases for
any such injuries occasioned by an obstruction or defect in the
street caused or created by the contractor or his workmen in the
construction of such improvements. Two answers may be given to that
proposition, either of which is satisfactory:
1. That it assumes a theory of fact which is contradicted by the
evidence.
2. That this Court, in its former decision, overruled it as
applied to a case where the work contracted to be done was itself
of a character necessarily to constitute an obstruction or defect
in the street or highway requiring precautions,
Page 71 U. S. 678
care, and oversight, to protect the traveler from danger and
injury.
1. Theory of fact assumed by the defendant is not sustained by
the evidence. Seven contractors were employed in preparing the lot,
laying the foundations, erecting and completing the building,
raising the sidewalk, constructing the area, laying the flagstones,
putting in the gratings, and finishing the improvements. Contractor
who constructed the area finished his contract prior to the
nineteenth day of December, 1856, when he left and went away, and
did not return till after the accident.
Uncontradicted evidence was introduced that the defendant
frequently visited the premises during the progress of the work and
that the curb wall was raised eight or nine inches under his
special directions in the latter part of September of that year.
Both the area and curb-wall were ready for the flagstones four
months before the accident. When the area was completed, it was
covered with joists, three by twelve inches, but they were
afterwards removed when the gratings were put down late in the
fall, and were never properly replaced. Attention of the defendant
was several times called to the dangerous condition of the
sidewalk, and the superintendent of public works gave him notice in
writing that the area was not properly covered. He gave no heed to
these repeated admonitions, but insisted throughout that it was the
sole business of the contractor, with which he had nothing to do.
Such willful negligence the law will never excuse.
2. Import of the decision of this Court in reversing the former
judgment of the circuit court and remanding the cause for a new
trial was that the party contracting for the work was liable, in a
case like the present, where the work to be done necessarily
constituted an obstruction or defect in the street or highway which
rendered it dangerous as a way for travel and transportation unless
properly guarded or shut out from public use; that in such cases
the principal for whom the work was done could not defeat the just
claim of the corporation or of the injured party by proving
that
Page 71 U. S. 679
the work which constituted the obstruction or defect was done by
an independent contractor.
Strictly speaking, that question was not open in this case, but
the argument was allowed to proceed, and, lest there should be a
doubt upon the subject, it is proper to say that we again affirm
the proposition.
Where the obstruction or defect caused or created 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. [
Footnote 6]
Implied authority was doubtless shown to construct the area, if
it was done with proper precautions to prevent accidents to
travelers, but no authority to construct it without such
precautions is proved or can be presumed, and it is clear that in
leaving it open and without guards during the progress of the work
or after its completion, the defendant was guilty of gross
negligence, and the structure itself became unlawful. Concede that
the defendant might cast the blame on the contractor while the area
was being constructed, still it is clear to a demonstration that he
cannot successfully make that answer for his own negligence after
the work was completed, and the control and oversight of the
contractor had ceased.
Looking at the case in any point of view, there is no error in
the record.
Judgment affirmed with costs.
[
Footnote 1]
Chicago City v.
Robbins, 2 Black 418.
[
Footnote 2]
70 U. S. 3 Wall.
18.
[
Footnote 3]
2 Taylor on Evidence ยง 497.
[
Footnote 4]
1 Greenleaf on Evidence 12th ed., p. 559.
[
Footnote 5]
May v. Chapman, 16 Meeson & Welsby 355.
[
Footnote 6]
Hole v. Railway Co., 6 Hurlstone & Norman 497;
Ellis v. Gas. Cons. Co., 2 Ellis & Blackburn 767;
Newton v. Ellis, 5
id. 115;
Lowell v. B.
& L. Railroad, 23 Pickering 24;
Storrs v. City of
Utica, 17 N.Y. 104.
