Francis H. (Francis Hermann) Bohlen.

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that this only applies where the debris is cast upon nearby property ; where it
is cast to an abnormal distance, while the liability depends on proof of neg-
ligence, this circumstance shows a prima facie case. See also an able discus-
sion of the whole question by Henry P. Erdman. in an article upon
"Liability for injuries done by blasting," 54 Am. L. Reg. 677 (1906).



6l2 FITZ SIMONS & CONNELL CO. Z'. BRAUN & FITTS

defendant used quantities of gunpowder, — a violent and dangerous
explosive, — to blast out rocks upon his own lot contiguous to another
person's, situate in a large city, must be taken as an unreasonable,
unusual and unnatural use of his own property, which no care or
skill in so doing can excuse him from being responsible to the
plaintiff for the damages he actually did to her dwelling house as
the natural and proximate result of his blasting, for an act which
in many cases is in itself lawful becomes unlawful when by it
damage has occurred to the property of another; and it would make
no material dift'erence whether that damage, resulting proximately
and naturally from the act of blasting by the defendant, was caused
by rocks thrown against jNIrs. Colton's dwelling house, or by con-
cussion of the air around it, which had either damaged or entirely
destroyed it. The defendant seems by his contention to claim that
he had the right to blast rocks with gunpowder on his own lot in
San Francisco even if he had shaken Airs. Colton's house to ruins,
provided he used care and skill in so doing, and although he ought
to have known that by such act, which was intrinsically dangerous;
the damage would be the necessary, probable or natural consequence ;
but in this he is mistaken." The doctrine of this case was re-
affirmed by the same court in Munroe v. Pacific Dredging Co. 84
Cal. 515.

In Bradford Co. v. St. Mary's Co. 60 Ohio St. 560, the mjury
resulting from an explosive was by concussion or vibration — i. e.,
consequential injury. The Supreme Court of Ohio said: "When
the owner of a stone quarry, by blasting with gunpowder, destroys
the buildings of an adjoining land owner, it is no defense to show
that ordinary care was exercised in the manner in which the quarry
was worked." In that case the ground of liability invoked and as-
serted was the storing of nitroglycerin upon the defendant's own
premises, and the court, in affirming a liability without regard to
any negligence in the manner of storing and without distinction as
to direct or consequential injury, and because of the inherent dangers
of storing it at all, based its conclusion, by analogy, upon the
rule as to blasting as above quoted.

Mr. Thompson, in his Commentary on the Law of Negligence,
(vol. I, sec. 764,) says decisions can be collected responding to three
propositions: (i) If by an explosion dirt or stones are thrown
upon the property of the adjoining owner, injuring such property,
such owner may recover damages irrespective of the question of
negligence, since this is a trespass upon his property; (2) where the
work of blasting is done in a situation where it is necessarily danger-
ous to the public, as in a thickly settled portion of a city, damages
are recoverable without proof of negligence, for the reason that
in such case the work itself is so inherently dangerous that the doing
of it no matter how carefully, is of itself negligence; (3) liability
will attach to the person carrying on the dangerous work where the
work has been negligently done.

Though the law as to the liability arising in such instances does
not seem to have been harmoniously declared in the courts of the
different States to which we have referred, the mle in this jurisdic-



FITZ SIMONS & CONNELL CO. V. BRAUN & FITTS 613

tion was indicated by this ccjurt in the case of C'liy of Jolict v.
Harzvood, 86 HI. no. In that case it appeared that it was neces-
sary, in the construction of a pubHc work, that blasting of rocks
should ]jc done in a public street of the city. The contractor used
all due care, skill and caution in perforniing the work of blasting.
A stone was thrown by the blast against a building of the plaintiff
and injury thereby caused. Judgment was given against the city,
and in affirming, we said: "Tn this case the work which the con-
tractor was re(|uired by the city to do was intrinsically dangerous,
however carefully or skillfully done. The right of recovery in
this case does not rest upon a charge of negligence on the part of
the contractor. It rests ui)on the fact that the city caused work
to be done which was intrinsically dangerous, the natural (though
not the necessary) consequence of which was the injury to plaintiff's
property. In such case the city is responsible." It is true that in
that case there was an actual invasion of the property of the plaint-
iff, the explosion having precipitated a rock against his building; but
liability for injuries caused by actual invasion of the property, or by
the concussion or vibration of the earth or air, are within the doctrine
there announced. If one who, for his own purposes and profit,
undertakes to perform a work, by means of explosives, inherently
dangerous to the property of another, should be held liable for an
injury occasioned by any substance cast by the explosives on the
property of such other, it is only by the merest subtility of reason-
ing he should be held not liable to respond for equal or greater
damage caused by the concussion of the air or of the earth. There
is no ground of substantial or practical distinction.^ The case of
Bradford Co. v. St. iMary's Co. supra, may be regarded as authority
for the view that liability in such cases is not restricted to an
actual invasion of the property, but damages for consequential in-
juries may be recovered. The doctrine of the charge to the jury
we think correct.

Judgment affirmed.



a



'While in Murphy v. Cily of Lowell, the sole point decided was that _
city was not liable for injury resulting from the careful performance of
work necessary to the construction of public works planned and ordained
by the proper municipal authorities, and while in Benner v. Co., the court
laid emphasis upon the fact that the blasting was necessary to the per-
formance of a public work, the improvement of the entrance to Long
Island Sound, authorized by Congress and properly let to the defendant,
and that it was riot done in the exercise of privileges granted to private
persons or corporations for the benefit of private ownership, in Booth v.
Rome, etc., R. R.. 140 N. Y. 267 (1893) it was held that a railroad com-
pany, doing blasting on its own premises in order to make a properly
authorized cutting across a public highway, was not liable for damage
to adjacent property by concussion of the atmosphere or jarring of the
ground and in French v. Vix, 143 N. Y. 90 (1894) the same was held
though the blasting was done upon the premises of one who had employed
the defendant to build a house for him without any state'or municipal per-
mission, authority or direction, express or implied: see also Simon v. Henry,
62 N. J. L. 486' (1898) where though the defendant was a contractor for
nublic work the rule is stated generally and Booth v. R. R. and French v.
I'iv supra, are cited as authorities see also Fo.v v. Borhey. 126 Pa. 164
(1889).



5i4 STORRS :'. UTICA

CHAPTER VI.

Liability for the Acts and Omissions of Independent

Contractors.



STORRS v. UTICA.
Court of Appeals of New York, 1858. 17 N- Y. App. 104.
CoMSTOCK, J. The charge of the judge under which the jury
found a verdict against the defendant asserted the doctrine, in sub-
stance, that if, in the course of a pubhc improvement, it became
necessary for the city corporation to make an excavation in a street
so as to render it unfit or dangerous to be traveled upon, it became
the duty of the city to take measures, either by hghting the street
or otherwise, to warn travelers of the danger, and that this duty
did not rest upon the contractor unless he had specially agreed to
perform it. I am of opinion that there was no error in this charge,
unless it be in the apparent concession that a municipal corporation
can avoid the duty in question, and the consequent liability to per-
sons who sufifer injury from its neglect, by bringing the contractor
into a stipulation that he will perform such duty. In this case, how-
ever, there was no provision in the contract for constructing tne
sewer, that the contractor should place guards around the ditch, or
light the streets at night, or, indeed, do anything to prevent travelers
from receiving injury. The corporation merely undertook to build
a sewer and let out the work by contract. It thus caused a deep and
dangerous ditch to be dug in the principal street of the city, into
which travelers at night were liable to fall, without making any pro-
vision, either in the contract or out of it, for preventing accidents of the
kind now in question. When a case can be found, of respectable
authority, holding that a city corporation, having the exclusive con-
trol of the streets, owes to the public no duty in respect to them, and
is not liable for accidents occasioned by gross neglect, then some prog-
ress will have been made in the argument for exonerating the
defendant from liability for the injuries now in question.

We have been referred to two or three decisions of this court
which perhaps should be briefly noticed. In Blake v. Ferris ( i Seld.,
48), the accident happened in consequence of a sewer in one of the
streets of the city of New York being left open and unguarded at
night ; but the defendants in that case were not the city corporation.
They had merely a license to build the sewer for their own benefit,
and, as appears to have been assumed in the opinion of the court,
they let the work, through their agent, to a third person by contract,
binding him, as they themselves were bound to the city, to cause
proper lights to be placed at the excavation, for the prevention of
accidents. No question of corporate duty or liability could therefore
arise. It was held that the contractor whose servants were guilty
of the neglect was liable, and that the defendants were not. The
opinion of Judge Mullett contains a very elaborate and, I doubt not,



STORRS V. UTICA 6 1



D



a very correct exposition of the doctrine of respondeat superior;
but I feel less sure tliat the doctrine was appHed with strict accuracy
to the facts in the case. The reason for this doubt will be more
appropriately stated after referring to two later cases which have
also been cited on the part of the ajjpellant. In one of these {Pack
V. The Mayor, &c., of A'czc York, 4 Seld., 222; one Foster had
contracted with the corporation of Xew York to furnish materials
and do the work in regulating and leveling a part of the Blooming-
dale road, in the city of Xew York. The injury, on account of
which the suit was brought, was occasioned by the negligent blasting
of rocks, in the execution of the work under that contract, whereby
fragments were thrown into the plaintiff's house. Following the
general doctrines laid down in Blake v. Ferris, it was held that the
city corporation was not liable, on the ground that it was not the
employer or superior of those whose negligence had caused the
accident. Foster had sub-let the blasting to one Riley. Entirely
similar to this in principle was the next case referred to. (Kelly v.
The Mayor of Nezo York, i Kern., 432.) One Quin had contracted
with the corporation to grade a street, and he employed another
person to do the blasting, by whose negligence a stone was thrown
against the plaintiff's house. The work was to be done under the
direction and to the satisfaction of the commissioner of repairs and
supplies, the superintendent of roads and the surveyor having charge
of the work; but the court held that this agreement with Quin
only entitled those officers of the city to direct the results of the
work, and not the manner of performing it. It was accordingly
held that the plaintiff could not recover; this decision, like that in
Pack V. The Mayor, &c., being placed distinctly on the ground that
the corporation had no right to select the workmen, and therefore
was not chargeable as principal for their careless acts in doing the
work.

Now, in these two cases of Pack v. The Mayor, &c., and Kelly
V. The Ma\or, &c., the general doctrines so well set forth in Blake
V. Ferris, were applied with entire precision and accuracy. The
injuries were caused by the negligent acts of workmen over whom
the corporation had no control, and done by them in the actual per-
formance of the very work contracted for. In grading the streets,
blasting was necessary, but with the manner of doing that the corpor-
ation could not interfere; nor could it discharge one workman or
employ another. By the contracts it had secured the results only. But
in Blake v. Ferris there was a difference in the facts which may
justify the doubt I have alx>ve suggested. In that case there was no .
complaint of negligence in the actual performance of the work. The
ditch was carefully and skillfully dug. There was no careless projec-
tion of rocks against horses or travelers. The plaintiff's carriage
and horses were driven into the ditch, because it was not guarded
at night. The cause of the accident, therefore, was ;;o/ /;; ihc manner
in zvhich the zi'ork was carried on by the laborers: if it had^ been,
their immediate cm plover, and he only, zvas liable for the injury.
But in a sense strictly logical, as it seems to me. the accident was the



6l6 STORKS Z\ UTICA

result of the work itself, however skillfully performed. A ditch
cannot be dug in a public street and left open and unguarded at
night without imminent danger of such casualties. If they do occur,
who is the author of the mischief? Is it not he who causes the ditch
to be dug, whether he does it with his own hands, employs laborers
or lets it out by contract? If by contract, then I admit that the con-
tractor must respond to third parties, if his servants or laborers are
negligent in the immediate execution of the work. But the ultimate
superior or proprietor first determines that the excavation shall be
made, and then he selects his own contractor. Can he escape re-
sponsibility for putting a public street in a condition dangerous for
travel at night by interposing the contract which he himself has
made for the very thing which creates the danger ? I should answer
this question in the negative. He may insert in the agreement, a
clause that the contractor shall provide proper lights and guards,
but I do not see how even that can change the principle. The con-
tractor in that case would be liable to indemnify his employer for
accidents occasioned by his neglect of the stipulation, and, perhaps,
also liable directly to persons injured. He might even be liable to the
latter for leaving the ditch unguarded at night, without any stipula-
tion on his part. But, granting all this, it has no tendency, in my
judgment, to shield the ultimate superior or author of the work
from responsibility.

The principles suggested become plain propositions in the case
of a municipal corporation which owes to the public the duty of keep-
ing its streets in a safe condition for travel. That the duty exists
is not denied ; and the doctrine that persons receiving special injury
from its non-observance can maintain an action therefor was exam-
ined by this court and asserted in the recent case of Hickcock v. T/ze
Village of Plattsburg (i6 N. Y., i6i). What then is the obligation
of a city corporation when it undertakes to construct a sewer in a
public street? Can it in that undertaking and in any mode of pro-
viding for the execution of the work throw off the duty in question
and the responsibilities through which that duty is to be enforced?
Although the work may be let out by contract, the corporation still
i remains charged with the care and control of the street in which the
i; improvement is carried on. The performance of the work necessarily
y renders the street unsafe for night travel. This is a result which does
I not at all depend on the care or negligence of the laborers employed
by the contractor. The danger arises from the very nature of the
improvement, and if it can be averted only by special precautions
such as placing guards or lighting the street, the corporation which
has authorized the work is plainly bound to take those precautions.
The contractor may very probably be bound by his agreement not
only to construct the sewer but also to do such other acts as are neces-
sary to protect travel. But a municipal corporation cannot I think
in this way either avoid indictment in behalf of the public or its lia-
bility to individuals who are injured. ^

* "Another exception to the general rule, relieving an employee from lia-
bility for an injury occasioned by an independent contractor, is, where the



STORKS V. UTICA 617

These views perhaps go somewhat further than necessary to
sustain the judgment now under review, in the present case the
corporation of Utica determined to construct a sewer through its
principal thorougiifare, and not only neglecting on its own part to
take any measure for the protection of travelers, it did not even
bind the contractor to anything beyond the mere execution of the
work. It has been determined by this court that under such a con-
tract the contractor is under no obligation to the corporation employer
to take measures to prevent persons from falling into the ditch while
in process of construction. (The City of Buffalo v. HoUozvay, 3
Seld., 493). In determining that point the opinion was also very
clearly expressed that the corporation of Buffalo was liable to per-
sons receiving injury by its neglect to maintain lights and guards
around the excavations made in progress of the work.

The judgment should be affirmed.

Roosevelt, J., dissented, holding that Shippey, the contractor,
was bound, not as agent of the city corporation, but as principal, so
to perform the work as not injure travelers, and that he only was
liable for the negligence.

Denio, J., did not sit in the case.

All the other judges concurring,

Judgment affirmed.

party causing the work to be done is under a primary obligation, imposed by
law, to keep the subject matter of the work in safe condition" (and under
the general law for the incorporation of villages, the duty to keep their streets
and sidewalks in safe condition is imposed upon them). "The principle upon
which this exception is predicated is, that where a duty is so imposed, the
responsibility for its faithful performance cannot be avoided, and that the
party under such obligation cannot be relieved therefrom by a contract made
with another for the performance of such duty." Baker, J., Village of Jeffer-
son V. Chapman, 127 111. 438 (1889), p. 445, and see Dillon on Municipal
Corporations, section 1027.

Accord: Birmingliam v. McCary, 84 Ala. 469 (1887") ; City of Anderson
v. Fleming, 160 Ind. 597 (1903) ; Detroit v. Cory, 9 Mich. 165 (1861) ; St.
Paul V. Scitz. 3 Minn. 297 (1859) ; Butler v. Bangor, 67 Maine. 285 (1887) ;
Mayor of Baltimore v. McDonnell, 53 Md. no (1879) : Brooks v. Somerville,
106 Mass. 271 (1871) : Ray v. Poplar Bluff. 70 Mo. .App. 252 (1897) : Omaha
v. Jensen, 35 Neb. 68 (1892") ; Circleville v. Ncuding. 41 Ohio, St. 465 (1885) ;
McAllister v. Albany. 18 Oregon, 426 (1890) ; Nashville v. Brozvn, 9 Heisk.
(Tenn.), i (1871) : Wilson v. Wheeling, 19 W. Va. 323 (1882^: Hincks v.
Mihvaukee, 46 Wis. 559 (1879), in which it was held that a clause in the
city's charter exempting it from such liability was invalid as "granting a
special immunity against a general rule of law to which other municipal cor-
porations were subject."

The municipal corporation is liable though the dangerous condition is
only "momentary". Blessington v. Boston, 153 Mass. 400 (1891), neglect of
workman to immediately replace barriers which had to be removed from
time to time to allow cars to pass.

A municipal corporation is held to be liable though the contractor is not
employed by them, but by some person or corporation who is licensed to do
work which necessarily involves the creation of a dangerous condition in the
highway, ffauiford v. Kansas. T03 Mo. 172 (jSqo): Willard v. h'eicberry,
22, Vt. 4^8 (1850^) : Phillips v. J'cazie. 40 I\Ie. 06 (■1855V It is also liable if
an individual, licensed to place an obstruction in the highway, fails to prop-
erly guard and light it. Kinq v. Cleveland, 22 Fed. 835 (1885); Magee v.
Troy, 43 Hun, N. Y. 383 (1888).



6l8 VEAZIE V. PENOBSCOT R. R. CO.



VEAZIE V. PENOBSCOT R. R. CO.

Supreme Judicial Court of Maine, i860. 49 Me. 119.

Kent, J. — The plaintiffs claim to recover of the defendants dam-
ages which they allege they have sustained by reason of the acts of
the defendants, in causing a deep cut to be made in a highway in the
town of \''eazie. The first ground of damage is, the amount which
the town has been compelled to pay to one Phillips, and the cost and
expenses of defending a suit instituted by him against the plain-
tiffs, as primarily liable for the injuries caused by the defect. The
second ground of damage is, the injury sustained by the town by the
digging down, and the cost of repairs of the highway.

The defendants insist, in the first place, that whatever was
done was done in pursuance of their legal right by their charter, § 8,
and by c. 81, § 8. of R. S. of 1841.

By the provisions of those Acts, the railroad corporation had
an unquestioned right to have their road pass over or under the
highway ; and, for that purpose, to raise or lower any part of it.

The right to make the cut did not give the right to do it without
due regard to the public safety; and that required that all proper
guards should be erected and continued, whenever there was danger
of injury to any person by reason of the cut. The charge in this
case is, that the corporation made a deep cut, partly across the road,
which was not well guarded, by sufficient railing, against accident ;
and that one Phillips, travelling on the road in the evening, using
due care, walked or fell into the hole or cut so made, and was in-
jured.

It is further objected that this company is not liable for dam-
ages consequent upon the acts or neglects of the persons who had
contracted with the corporation to do the work. It is contended
that the contract was a legal one, and only authorized a legal act;
and that, if the contractors performed this legal act in an illegal
manner, the company is not responsible.

But we place the decision on this point on the well settled doc-



^M>a:



Contra: Painter v. Pittsburgh, 46 Pa. 216 (1863), decided on the author-
ity of Blake V. Ferris, Pack v. Mayor (see opinion in principal case), and
Barry v. Si. Louis, 17 Mo. 121 (1852), which is disapproved in the later case
of Haniford v. Kansas, supra. A corporation formed for the purpose of
maintaining "turnpikes" for its private gain is, however, liable if through the
negligence of its independent contractor the road is unsafe, the distinction
being that "the maintenance and repair of roads and streets are merely a
burden imposed on a municipality, whilst a corporation created for the pur-
pose is compensated by tolls." Lancaster Ave. Imp. Co. v. Rhoads, 116 Pa.
377 (1887). The immunity of a municipality only extends to temporary
defects existing while the contractor is in complete control of the work; after
the work is turned over to and accepted by the municipality it is responsible
for defects due to the contractor's negligence. Mahanoy Tozvnship v. Schally,
84 Pa. 136 (1887). In James v. San Francisco, 6 Cal. 528 (1856). and Krausf
V. Sacramento. 48 Cal. 222 (1874), the city held to be exempt from liability
since thev were compelled bv law to let to the lowest bidder all work neces-
sary for the improvement of 'the streets: but see Detroit v. Cory and Mahanoy
V. Schally, supra, in which this argument was advanced and rejected.



VEAZIE V. PENOBSCOT R. R. CO. OlO

trine, that, where the Legislature, as guardian of the rights of the
pubHc in a liighway, permits a corporation or individual to use or
interfere with the way, antl to obstruct its use, on condition, express
or implied, that all requisite care is to be taken to protect others
from injury, the right thus granted must be exercised by the party
to whom it is granted, and cannot be assigned, so as to relieve the
party from the faithful execution of the power. The companv may