text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    THE VILLAGE OF NORWOOD v. GEORGE C. OGDEN AND LAURA L. WHALING.

      Appropriation for street purposes — Assessment of compensation and costs on owner’s remaining land by foot front—
    Under the decisions of the Supreme Court it is not unconstitutional for a city to condemn a strip of land for street purposes, pay for ; it, and then assess the amount of the damages awarded for the land and the expenses of condemnation proceeding on the abutting lots and lands by the front foot, although by such proceeding the owner of the strip taken will be. compelled to pay back by way of assessment the money awarded to him together with the costs of the condemnation proceeding.
    Error to the Court of Common Pleas of Hamilton county,
   Smith, J.

, 'In the original action Ogden and others sought to restrain the village from the collection-of an assessment levied on their property to pay condemnation money for property appropriated by the village to open a street in said village. A general demurrer to the petition was filed by the village. This demurrer was overruled by the court, and the defendant not desiring to plead further, the injunction was made perpetual, and judgment rendered against the village for the costs, and to all of which it excepted, and filed this petition in error, seeking the reversal of said judgment.

In substance the petition alleged that on Feby. 15,1892, the village, by its council, passed an ordinance for the condemnation and appropriation for public use, for opening and extending Sherman avenue, of a strip of ground, and providing that the condemnation money, costs, etc. be assessed per front foot upon the property bounding and abutting on that part of Sherman avenue so condemned and appropriated therein. That proceedings were accordingly had against plaintiffs and others to assess said compensation, and Geo. C. Ogden was allowed $625, and Laura L, Whaling $625, which was paid to them.

That on Nov. 7, 1892, the council passed an ordinance to assess a special tax on real estate bounding and abutting on Sherman avenue from the east side of Allison street to tne east line of Ogden’s land,as provided in said ordinance' — ■ viz., so much on each front foot of the several lots of land bounding and abutting on Sherman avenue from east side of Allison street to east line of Ogden’s; to pay the cost and expense of condemning property for extending said Sherman avenue between the points aforesaid, together with the interest on bonds, etc.

It is further averred that the village seeks through the enforcement of said ordinance to assess the damages caused to plaintiff and others by the appropriation of the property of plaintiffs and others,the costs and expenses etc. back on the remaining property of plaintiffs and others, bounding and abutting on that .part of Sherman avenue so condemned and appropriated according to the front foot. There are other allegations as to the collection from plaintiffs of the amount assessed against plaintiffs’ property for 1893,and the certification to the county auditor of the installments for the years 1894 and 1895 on their property; and it is averred that if plaintiffs are compelled to pay the assessments made against them, it will require not only the total amount of the compensation money awarded to them, but' other sums in addition, and that this is arbitrary, unjust, and in violation of law and the constitution of the state, and will be a confiscation of their property which is without due process of law, and in violation of the constitution of the United States.

It is our understanding that the constitutionality and validity of such legislation and proceedings has been settled adversely to the claim of the plaintiffs below, by the supreme court of this state. Sec. 18 Ohio St., 303; 29 Ohio St., 69 and 49 Ohio St., 334. While these decisions stand, or unless a different rule is established by the Supreme Court of the United States, we are bound by them.

It was stated by counsel for defendant in error,that all of the land abutting on the property so'condemned and appropriated, liable to assessment,was not in fact assessed. This does not appear from the allegations of this petition, and in our opinion the petition did not state a good cause of action, and the demurrer was improperly overruled, and the judgment for plaintiffs improperly rendered. The judgment will therefore be remanded to the court of common pleas for such further proceedings as are warranted by law..


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1898.)
    Before King, Haynes and Norris, JJ.
    (Judge Norris taking the place of Judge Parker.)
    CATHERINE S. FISHER v. WASHINGTON W. TRYON, GEORGE B. SCHULTZ, and THE TOLEDO TRANSFER COMPANY.

      Pleading — Averments in, bind party — Different parties defendants—

      (1) . A party is concluded by the averments of his pleadings, and will be bound by the averments as between himself and one of the defendants, although evidence may have been properly admitted as between himself and another party in the case to the contrary.

      Independent contractor — Liability of property- ovmer—

    (2) . Application is made in discussing the charge of the court and facts of the case,of the rules laid down in 47 Ohio St,, p. 207 and 49 Ohio St., p. 69, in regard to the liability of property owners for-acts of contractors.

      Hack driver — Duty of care — Excavation in street—
    (3) . The petition charged that the driver of the Transfer Company’s back, did not use ordinary and reasonable care in driving and looking out along the street. The court charged “that it was the duty of the driver while driving to keep a prudent and careful lookout ahead of him, and to use all reasonable care to avoid obstructions and excavations in the street; that is, such care as an ordinarily prudent person in his situation and under the circumstances surrounding him, is accustomed to exercise.” Held: A correct statement of the law governing this case.

      Action for damages for tort against different defendants — Verdict against all, only for joint tort of all—

    (4). In an action in tort against several defendants, the jury were charged that if they found against all of the defendants, they could only assess damages which resulted from the acts of all the defendants.

    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

A petition in error is filed by the plaintiff for the purpose of reversing a judgment of the court of common pleas rendered in a case wherein Catherine S. Fisher was plaintiff, and these defendants in error were defendants. The petition in the common ple^s was originally filed by plaintiff against George "R. Schultz and Washington W. Tryon, alone, and it set out, among other things, that said city was a municipal corporation and that certain streets in said city crossed each other; “that on the 22nd day of September, 1894, the defendants entered upon said St. Clair street, a little northwesterly of where it intersects with Monroe street, and removing the paving stones upon one side of said street, did excavate a large and deep hole in said street, for the purpose of making some kind of water or gas-pipe connection or otherwise, the exact nature of which to plaintiff is unknown.” It then states the duty of defendants in regard to the excavation; that “they negligently, wrongfully and carelessly, after making the said excavation in the roadway of said street, and while at work-thereat, failed to place either barriers or lights in, around and by the same, and left the same open and exposed in the night season of said day when it was dark, in such wise that persons passing upon and along said street, upon foot and in vehicles, were liable to fall therein, and be thereby greatly injured, as defendants well knew, or by the exercise of reasonable care might have known.” It then sets out that upon said day and in the evening thereof, the plaintiff was being carried, with her husband and her sister, in a carriage from the Boody House, in the city of Toledo, to the Michigan Central Railway Company’s depot in Toledo, along said street, and that while being so carried along said'street, ‘‘one side of said carriage suddenly dropped, down into said hole so made by defendants, throwing plaintiff forward and severely bumping and injuring her body, cutting and bruising her forehead above one eye, so that tlie same was caused to bleed profusely, Thereupon plaintiff, with the other occupants of said carriage, got out therefrom and were helped by plaintiff’s husband to the-sidewalk. It was very dark at said time, and neither plaintiff, nor her companions were able to see or distinguish the surroundings. After said carriage had been lifted up and moved forward, plaintiff’s husband came to plaintiff and undertook to assist her to again re-enter the said carriage, and while plaintiff was proceeding from where she was standing on the sidewalk to where said carriage was located, plaintiff suddenly stepped off into space, and was thereupon precipitated and thrown into the said deed hole then and there existing in the above part of said street as aforesaid. Said hole was about eight feet deep, and plaintiff fell to the' bottom thereof, falling against" and striking her body against the sides and bottom of the same, to her great in-j’ury and damage as hereinafter stated. It then proceeds to state the injuries that she received.

Subsequently, by leave of court, plantiff filed an amendment to her petition making the Toledo Transfer Company a party to the action, and in regard to that she says: ‘‘That .the Toledo Transfer Company is a corporation duly organized under the laws of the state of Ohio, and carrying on a general hack and vehicle transfer business in the city of Toledo, Ohio. Since filing her petition in this cause, the

plaintiff has been informed and believes that the said The Toledo Transfer Company is a proper party defendant herein, by reason of its negligence in connection with the injuries inflicted upon and sustained by plaintiff as set forth in her petition. Upon the night of the 22nd day of September, 1894, when plaintiff was being transferred in a carriage upon and along St. Clair street, in the city.of Toledo, from the Boody House Hotel, to the Union Railway Station, in said city, as set forth in the petition, she employed for that purpose the defendant, The Toledo Transfer Company, who was then and there a common carrier of passengers, to carry and transfer her from said Boody House to said Railway Station. And in pursuance of said contract of carriage, plaintiff was riding in a carriage or hack of said The Toledo Transfer Company at the time she received her injuries, as set forth in the petition. As such carrier of the plaintiff, it was the duty of said The Toledo Transfer Company to carry plaintiff safely and without harm,and deliver her at the said railway station. In that behalf it was its further duty to have its agent driving the carriage in which the plaintiff was riding, keep a constant, prudent and careful lookout, ahead of said carriage, to see and to avoid any obstructions or excavations that might be in and along the way over which said carriage was to pass. And yet the agent of the said defendant who was driving said carriage, did not so keep a constant, prudent and careful lookout upon the street along which he was driving; but on the contrary, negligently, wrongfully and carelessly, without the exercise of ordinary or reasonable care, drove the said carriage into the hole or excavation made in said St. Clair street,as described in the petition. Plaintiff is now informed and believes that the said agent of The Toledo Transfer Company did not exercise ordinary and reasonable care to observe and avoid the said excavation in said street, or take warning thereof so as to avoid the same; but did drive his said carriage so that the wheels thereof ran into the large hole excavated in St. Clair street as aforesaid, thereby proximately conducing to all the injuries and sickness and damages sustained by the plaintiff, as in her petition described.”

Tryon, in his answer- — niter making general denials'— says that he is the lessee of a store-room situate on the southeasterly corner of Monroe and St. Clair streets: “That in connection with his said business, and for the purpose of furnishing power to propel certain appliances used in and about said store, he has, and at the happening of the events hereinafter set forth, had in operation in his store, a water motor, which was furnished and supplied with water from the water main in St. Clair street, said water main being owned by the city of Toledo. That on or about the 22nd day of September aforesaid, there was a leak in his service pipe; that to prevent damage to property it was necessary to have it repaired immediately, and he employed the defendant, George B. Schultz, to repair-it. That said George B. Schultz is, and was at that time a plumber, engaged in such work, and who was regularly licensed and authorized by the said city of Toledo to perform such work, and to make the necessary excavations in the streets for the purpose of doing! the same, That thereupon said George B. Schultz proceeded to repair said pipe, and in so doing, it became and was necessary for him to make an excavation in order to reach said pipe where the same was broken and leaking, and also at the point or place, where said service pipe was connected with said waierpipe in St, Clair street. The said last-mentioned excavation was at the only point where the water could be turned or shut off from said service pipe while said repairs were being made, and that it was necessary for said water to be so shut off before said repairs could be made. This defendant further says that he in no wise directed, controlled, supervised or managed, and that he in no wise attempted to direct, control or manage or supervise the mode or manner of making said repairs, or in making the excavation necessary in and about the carrying on of said work. This defendant further says that he made a contract with said defendant, George B, Schultz, to make said repairs, but that in making such repairs said Schultz was not under, or subject to any direction or authority from this answering defendant as to how or in what manner said work should be done.”

The defendant George B. Schultz filed an answer himself, and it is mainly a denial of any negligence. The main part of it is that he denies that the excavation was not properly lighted and cared for, and he avers that if the plaintiff drove into the hole, she drove into it of her own negligence.

The defendant Transfer Company answering, admits that these parties were being transferred; admits that these holes were dug there, and says: ‘‘It admits that said defendants, Schultz and Tryon, did wrongfully, negligently and carelessly, after making the said excavation in the roadway of said street, and while at work thereat, fail to place either barriers or lights in, around and by the. same, and left the same open and exposed in the night season of said day when it was dark, in such wise that persons passing along and upon said street upon foot and in vehicles were liable to fall therein and be thereby greatly injured, as said defendants Shultz and Tryon well knew, or by the exercise of reasonable care, might have known. That admission is in the language of plaintiff’s petition.

A joint reply was filed by the plaintiff in the case. The petition having been filed in March, 1895, Schultz’s answer was filed in March, 1895, and the answer of Tryon filed in March, 1895, and the amendment to this petition, mal ing other parties, in April, 1895; service was had upon the Transfer Company at that time, and it filed its answer March 17th, 1897. This joint reply was filed on the 22nd day of March.

It appears in the journal entry that, upon ¡motion of the defendant Transfer Company, the reply itself was stricken from the files. It appears in the bill of exceptions, that it was stricken from the files, for the reáson, as stated, that the reply did not conform to the order of court. That being stricken off on the 22nd, the plaintiff was allowed to immediately file separate replies thereto, and on Ihe 24th of March, two days thereafter, he did file separate replies to the answers of the several defendants.

Trial was commenced on the 20th of March, 1897, and continued until a verdict was rendered, occupying, I think, a couple of days. '

Borne objections were made to the introduction of testimony by the parties, but nothing that affects materially the plaintiff. The testimony was given and the case then submitted to the jury, after the charge of the court, and most of the errors that are complained of arise from the charge given by the court to the jury. There is a general allegation in the motion for a new trial that the verdict is against the evidence, and it is said in the petition in error, that one of the greatest errors is that the court erred in overruling the motion for a new trial.

The testimony as it was offered by the various parties, shows substantially this state of facts: That this lady, with her husband,resided at Ypsilanti,in the state of Michigan) and had been on a visit at Tiffin, Ohio. They came into Toledo on the afternoon of the day stated in the petition, arriving about four o’clock, over the Pennsylvania road arid were carried by one of the .hacks of the Transfer Company,from the Pennsylvania Depot to the Boody House, and at that time an order was given by the husband of the plaintiff,that the hack return for them at 8 o’clock,or a little after, to take them from th6 B'oody House to the Michigan Central Depot — 'the Union Depot. The hack did return, and it was while passing along the street on their way to said depot that the accident occurred. The testimony on the part of the plaintiff, in regard to the condition of affairs, so far as she and her husband observed them, at this point, was that there were no lights at the place were the accident occurred, and that it was very dark, and that, as they were riding along, the carriage — as the husband thinks — turned a little to the left, and suddenly one side of the fore part of' the carriage dropped down a little distance and thereupon his wife was thrown forward — be being seated with his back toward the horses, and the lady on the hind seat — and hit a portion of her body,and also her forehead, against her husband, cutting her head, as the husband testifies, so that the-blood ran down one side of her face, and there being perhaps some bleeding at the nose. He testifies that he then opened the carriage door, upon the right hand side, and all the parties got out and went towards the sidewalk on the-westerly side of the street; that in a very few moments the driver said to these parties “Come on;” and they started to-walk over- — -the wife and her sister walking together, and the husband standing very near the carriage. Several parties had in the meantime gathered around the place where-the accident had happened, arid as the plaintiff and her sister passed through the crowd, Mrs. Fisher suddenly went down into this hole in the street,and received additional injuries.

The testimony on the part of the Transfer Company tends-to show that when the wheel went into the hole, the driver was pitched off upon the earth lying alongside of the hole;, that he got up, and one or two persons came and lifted up-his carriage; that when they did so the husband was standing by, and said: “Can we reach the depot?” That the-driver took out his watch and said “Yes”; that he had fourteen minutes; that Mr.Fisher thereupon called to his wife to-come over, and she came across and he opened the door and they got in, and, according to his testimony he .didn’t see anything of the falling into the hole, or of the lady being lifted from the hole. They then got into the carriage and started towards the depot, and then the husband ordered the driver to drive back to the Boody .House, which he did, where the parties remained until the next night, and then returned home.

The testimony on the part of Schultz and Tryon is, that a light was placed on this hole about five o’clock in the evening, and remained there until about eight o’clock, and was burning when Mr. Schultz went to his supper, the work being then completed with the exception of filling up the excavation. That when he returned, just after the accident occurred, the light, was not burning and the lant ern was lying there somewhere. It appears from the testimony of the boy who was a helper there, that he was in the hole where the repair had been made,and that hole, according to the testimony, was situated within the curb line, between the curbstone and the sidewalk, on the easterly side of the street; and Harry Schultz, a son of defendant Schultz, had come over to where he was for the purpose of getting a light, a few moments before the accident, and lighted his candle there by the other party’s candle, and went back to the hole in the street. Just where Harry Schultz was at the time of the accident, does not perhaps appear, except inferentially. He was present in court at the trial, but was ■'not called by either party. It is said that he lighted his candle for the purpose of getting down into the hole to turn on the water; and the young man in the other hole testifies that the water was turned on, and he remained there to see that it worked right. It is claimed in argument that Harry Schultz had taken this lantern' — 'his own light having gone out — for the purpose of lighting himself into this hole and to turn the water into the service pipe; but that does not appear very clearly — M least no parties appear to have been there at the time of the accident except the driver, and probably this son of Schultz.

The jury evidently found that at the time of the accident, the light was not burning upon the embankment; that there was no light or guard there at that time, and they returned a verdict of $1200 against Schultz, a verdict for the defendant Tryon and for the defendant Transfer Company. It is for the purpose of reversing this judgment in favor of Tryon and the Transfer Company that the petition in error is filed.

I will say here, that on reading the testimony, it appears to U3 that if the jury took that view of the facts in the case, that the verdict is in accordance with the probabilities. We think it very probable that while a lantern had been put on the dirt pile about five o’clock, for some reason, it was not there at the time of this accident.”

I have stated these matters very fully, for the reason that they throw light upon the charge of the court, and I will examine that charge to see whether the law was or was not correctly laid down by the court. Part of the charge was as follows:

“Next as to the defendant, The Toledo Transfer Co. This branch of the case also presents some peculiar features. I will first read and give to you as the law of the case to be applied by you, the special instructions Nos. 1 and 2, which have been requested in behalf of the Transfer Company.”

“1. The jury is instructed that as between the plaintiff and the defendant The Toledo Transfer Company,all of the allegations of the petition admitted by the answer of said defendant are to be taken as between the plaintiff and said defendant as true, notwithstanding any evidence that may have been received as to any of the facts so alleged and admitted.”

“2. The jury is instructed that as to the defendant The Toledo Transfer Co., an excavation was made in said street by persons other than the Toledo Transfer Company, and that the same was left open and exposed in the night season of the day of said accident, when it was dark, in such wise that persons passing along and upon said street, upon foot and in vehicles, were liable to fall therein. That the person or persons so making said excavation in the roadway in said street, and while at work thereat, failed to place either barriers or lights in, around and by the same. That it was very dark at said time, about the hour of 8-35 P. M. of said day, and neither plaintiff nor her companions were able to see or distinguish the surroundings. That each and all of the above statements of fact, are to be taken and considered as facts, of course solely upon the issue between the plaintiff and the Transfer Company, notwithstanding any evidence which may have been received in this case tending to-contradict the same.”

One of the peculiarities of the case is, that by the introduction of the defendant Transfer Company into the case, this has brought, in my judgment, several causes of action into one single cause of action: The liability of the defendants Schultz and Tryon upon the fact as to whether or not they had caused this excavation to be dug in the street and left it without any proper barriers or lights or warning. The liability on the part of the Transfer Company that there being a hole in the street — no matter how the hole came there — whether by the action of man, or natural causes —there being a dangerous hole in the street, the driver carelessly and negligently drove into the hole, and as a result of it, the plaintiff was injured. Now in order to establish the negligence of Tryon and of Schultz, it was necessary to make the averment that there was no light — no protection — 'to this hole, and that it was dark, so that it could not be seen; and, as I said before, the testimony of the plaintiff was very strong upon that point. In order to establish the liability of the Transfer Company, it was necessary to show that it was light at the time of this accident, that it was light — ^o that the driver could see — so that he ought to have seen — might have seen- — this excavation. Now the plaintiff files a petition against Schultz and Tryon and alleges, in strong language, that there was no light at this point; no barrier, and that it was very dark. Afterwards he filed an amendment to his petition and made The Toledo Transfer Company a party, leaving the allegation just as it was in regard to the lights and the condition of affairs at the excavation or hole, and said that the defendant negligently drove into it,that is,the driver of the' Transfer Company. In the answer of Tryon, he denied that there were, no lights there,-and practically stated that there was, and Schultz also; but in the answer of the Transfer Company they admit the allegations of the petition, almost substantially in the language of the petition itself, and planted themselves upon it, and stood upon it, and it was with regard to these allegations that this charge of the court was made and exceptions taken.

We suppose there is nothing better established than that the solemn allegations of a party in his pleadings in a case are to be taken as conclusive against him. He was bound to state the facts of his case; and he did state them as he supposed them to be true and correct, and by those he was bound. It was argued that he was entitled to the allegations made in the answer of Tryon; but we think that that position is not well taken. The suit is against all of these parties; that all of them have in some form united in joint wrong, were parties to it — the allegation is that these parties were tortfeasors. A judgment may be rendered in favor of either or against either of these parties,and they are each of them entitled to their own separate defenses according to the facts which are alleged against them, and the defense of this Transfer Company was — 'that it was dark at that point,and the driver not able to see. The misfortune is that it was joining inconsistent actions in the same cause of action and tried in the same case. We are clear that the charge of the court was right, and that no error intervened in giving the charge.

Now, in regard to the defendant Tryon, an exception is taken to the charge given by the court in respect to him. The plea that he had made was, practically, that he had let ihe work to Schultz, who was an independent contractor; that he himself had retained no power or control over the ■actions of Schultz, and gave no directions in any manner or form whatever, and that Schultz was a person who was licensed by the city of Toledo to make connections with the water-works of the city, and testimony is offered to show that persons were prohibited from in any manner interfering with the water-works, under penalties, unless by the ■consent of the proper authoritiess, or unless they had a license from them. I vill read the charge in regard to Tryon. It is a little long, but it is necessary to give it in order to understand it fully:

“Next as to the defendant Tryon. If you do not find from the weight of the evidence that the defendant Schultz, •or any of his employes, was negligent in the respect alleged, then there is no liability upon the part of the defendant Tryon, and in that case your verdict must be in his favor also. The plaintiff seeks to recover or to hold the defendant Tryon liable for the negligence of Schultz; therefore,if the proof fails to show that Schultz or any of his employes were negligent, or if it fails to prove that the injury resulted from such negligence, then no recovery can be had against Tryon; but if you find from the' weight of the evidence that Schultz is liable for the injury, then you will •determine whether or not Tryon is liable. In order to entitle the plaintiff to recover against the defendant Tryon, it must be shown by the weight of the evidence that is admissible in this case against the defendant Tryon: (1) That Schultz was negligent in not having the excavation properly lighted or protected at the time of the happening of the accident; (2) that under the law which I will explain to you hereafter, Tryon is liable for the negligence of Schultz; and (3) that such negligence was the proximate cause of the injury. It is one of the many peculiar features of this case that certain evidence has been introduced against the defendant Schultz which is not admissible and cannot be considered by you as against the defendant Tryon. Without stopping to explain why this is so, I will read and give you an instruction referring to that evidence which has been, requested on behalf of the defendant Tryon. It is request No. 8:

“In determining whether said excavation was properly lighted or protected at the time of the accident, you will not, as against the defendant Tryon, consider any evidence relating to any trial which may have been had against the defendant Schultz in the police court of this city with reference to this accident, nor will you consider as against the-defendant Tryon any testimony that was given before you as to what any witness or witnesses testified to in said trial of the defendant Schultz in the police court.

“With the exception of the testimony that is referred to-in that instruction, you will consider as against the defendant Tryon all the evidence in the case bearing upon the subject, and determine whether or not Schultz was negligent in not having the excavation properly lighted or protected at the time of the accident.

“Let me repeat: in determining whether Tryon is liable, you will consider all of the evidence as to Schultz except the testimony in the police court in that connection. I need not repeat what I have already said as to the defendant Schultz upon that subject. If you do not find as against the defendant Tryon that the defendant Schultz was negligent, then your verdict must be in favor of Tryon. But if you find that as against the defendant Tryon that Schultz was negligent, and that such negligence was the proximate cause of the injury, then you will consider the remaining-question as to Tryon, and that is, whether Tryon is liable for the negligence of Schultz. It appears from the pleadings- and evidence that Tryon was the lessee and occupant of the store upon the northeast corner of Monroe and St. Glairstreets; that the service pipe which was connected with the water-main in St. Glair street, and which supplied his premises with water, leaked; that he employed the defendant Schultz to repair the leak, and that for this purpose it was necessary for Schultz to make an excavation in the-street. And it further appears that Tryon did not reserve-to himself any direction or control over the mode or manner in which Schultz was to do the work. Upon these undisputed facts Schultz was to do this work which he was-employed by Tryon to perform,as an independent contractor — what is known in law as an independent contractor. He was not the agent of Mr. Tryon, or servant of Tryon, in doing the work. And the question arises: Under what circumstances, if any, Tryon is liable for the negligence of Schultz, or his employes, in the performance of the work as I have said, the defendant Schultz being an independent contractor. Ordinarily, and as a general rule, one who causes work to be done is not liable for injuries that result from carelessness in its performance by the employe of an independent contractor to whom he haslet the work without reserving to himself any control over the execution of it, but that principle has no application when the injury is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case, that is, where the injury is one that might have been anticipated as likely to result from the perform- ’ anee of the work if reasonable care was omitted in the performance of it — Ihe person causing the work to be done will be liable, though the negligence is that of an employe of a independent contractor. The defendant Schultz being an independent contractor, the defendant Tryon is not liable for his negligence or the negligence of his employes, unless, to the knowledge of Tryon, the performance of the work which he employed Schultz to do,necessarily tended to expose persons to injury if the work was nqt properly guarded. If, therefore, the injury in this case resulted from the negligence of Schultz or his employes, and if Tryon had reason to anticipate the injury as a-direct and probable consequence of the work Schultz was employed to perform provided the work was not. properly guarded, then Tryon is liable for the negligence of Schultz. But if the injury did not result from the negligence of Schulz, or if Tryon had no reason to anticipate that such an injury would result from the perform■ance of the work if reasonable care was omitted in the performance of the work, then Tryon is not liable. I shall leave it to you, as a question of fact in the case, whether or not the performance of this work necessarily tended to expose persons to danger if it was not properly guarded, and whether or not Tryon might reasonably have anticipated the injury as liable to result from the performance of the work if it was not properly guarded. You will consider the nature of the work, what it was, where it was to be performed, whether the excavation in the street was necessary for the performance of the work which Tryon employed Schultz todo, viz: the repair of the pipe; what the defendant Tryon knew about the subject, and all the evidence.”

The main objection to this part of the charge is that portion where it says Schultz was an independent contractor, and in regard to what Tryon should anticipate as to the danger of the work to be done. The supreme court of this state has made decisions touching the questions under discussion. In the 8 Ohio St., in the original case of Clark v. Fry, which stood as the law of the supreme court for twenty years, they held that where work was placed in the hands of an original contractor to perform the work, that the owner of the building was'not liable, The supreme court say in the case in 49 Ohio St,, 69, that they do not intend to and do not disturb the decision of the supreme court in that case, or the law as there laid down as applicable to the facts of that case; and that was a case from very near where this accident occurred, on Summit street in this city, where a building had been let to a contractor who had been placed in possession of the property, who was to furnish the materials and erect the building, and as a part of the plan of the building, and necessary in the erection of it, an area was dug extending a few feet into the sidewalk, and while it was being excavated and the earth piled around it, the plaintiff, Fry, came along and fell in, and the court held that the owner of the building, Clark, was not liable. The whole doctrine was discused at that time in regard to nuisances and these various questions,

In this case in 49 Ohio St., Hawver v, Whalen, p. 69, which occurred in Ceveland, the owner of the property had caused an excavation to be made for a building,'1 and had entered into a contract with parties to erect the walls of the building and to do the mason work and the area, and while they were performing that work upon the area, and perhaps had got the wall substantially completed, a board which had been placed over it for people to pass upon, had become removed, and the plaintiff stepped down into the hole, and was injured. The supreme court held in that case that inasmuch as the excavating was being done by the owner himself,he was not exonerated from the fact that he afterwards employed another person to furnish the material and do the mason work of building the area.

There is a case in 47 Ohio St. 207, where a railroad company was mating an excavation clear across the street,and in that case the supreme court held that the company was liable. And they say in this case of Hawver v. Whalen that they do not dispute the proposition as laid down by the supreme court in Clark v. Fiy. The distinction is, that in one case the whole work was in the possession of the contractor, and in the other the hole itself had been excavated by the owner of the building, and he afterwards let the work of erecting the walls around the hole to an independent contractor.

Now it seems to us that is the distinction made in this case, and, upon the facts of this case, the charge of the court was right in this case. The work which was to be done here — as the work in the Fry case — the main portion of it, was to be done within the curbstone, and not in the street itself — not in-the roadway. At the point where the water is let on, there came a leak, and the water was running out at that point, and was escaping down the street and into the building, and was liable to create a good deal of damage. The city had passed an ordinance which did not permit any person to touch the water pipes except by the consent of the proper authorities, and under that ordinance plumbers were authorized to whom was given authority to enter upon the streets and tap the water pipes. This party had given bond to the city of Toledo, in the sum of a thousand dollars, to save it harmless from all damages, and thereupon he was permitted in the exercise of his authority to enter upon the streets and tap the water pipes. The business he was to do for Mr. Tryon was to get to this point and fix the water-pipe. In doing that, it became necessary .for him to shut the water off from the pipe that connected with the building, and, in order todo that, it became necessary to dig this hole in the street, but the main work was done at the other point. The court charged that if the party might anticipate damage and injury accruing to the public, Tryon might be liable — under those circumstances. Upon that charge the jury found in favor of Tryon. Now the law laid down by the court in that particular case is almost in the language of the syllabi in the above cases in 47 and 49 Ohio St.' — fit is what a party may anticipate, or ought reasonably to anticipate, may occur if proper care is not used; that is to determine the liability of the party. So, in that respect, we find no error in the charge of the court.

Now there is another .thing in regard to the charge against the Transfer Company. The court says — among other things: “And whether or not the driver was negligent, depends upon what was his duty under the circumstances, and whether he failed in the performance of his duty. It was the duty of the driver of the carriage while driving along upon the street, to keep a prudent and careful lookout ahead of him, and to use all reasonable care to avoid obstructions and excavations in the street; that is,such care as an ordinarily prudent person in his situation and under the circumstances surrounding him, is accustomed to exercise. He had the right to assume while driving along upon the street that the street was free from obstructions and excavations, but that right did not relieve him from the duty of using proper care to avoid excavations in the street. If he did not know of this excavation, and by the exercise of reasonable care could not have known of it, then he was not in fault. The inquiry then will be, there being, as to the Transfer Company,no signal light to warn the traveler of the excavation, and the other facts existing which are admitted by the pleadings, did the driver see the hole, or might he have seen it by the exercise of reasonable care, in time to have avoided driving the carriage into the hole? What did he actually see; or what, by the exercise of reasonable care, might he have seen? In order to entitle the plaintiff to recover from the defendant the Transfer Company, it must be shown by the weight of the evidence that the driver of the carriage was negligent, and that his negligence was the proximate cause of the injury. And in determining whether the driver was negligent, you will consider the facts alleged in the petition which are admitted in the answer of the Transfer Company, and only such parts of the evidence in the case as relates to matters or facts not so alleged and admitted.”

Now it is claimed on the part of plaintiff in error,that the charge is not strong enough'in favor of the plaintiff — 'that it is not stringent enough in regard to the duties of the Transfer Company. It is argued that the Transfer Company is a common carrier of passengers, and that the obligation or degree of care that they should exercise was the highest degree of care. In regard to the character of that company, it is averred in the petition that it is a hack and transfer company, and at another point it says that it is and was a common carrier of passengers. The answer admits that it is in the business of driving hacks for the purpose of transferring people about the city, but denies that it is a common carrier — that is, it denies' generally all other allegations.

Quite $n extensive brief has .been filed, and we have examined a great many authorities in regard to the matter. Even in regard to common carriers, there is a great variety of opinions in decisions of different courts; some courts laying the degree of negligence substantially in accordance with that laid down in this case, and others perhaps stronger. The rule is laid stronger in regard to carriers that carry persons by the means of powerful agencies, like railroad cars, than as to those which carry by horses and carriages. Some difference is made between carriers and private individuals who carry; but, after examining these various authorities and the facts of this case,under the allegations of plaintiff’s pleadings alleging that the driver did not use ordinary and reasonable care, and so pleading negligence the driver of this hack — we think that the charge of this court was correct, and was strong enough, and that there was no error in regard to that.

There is another point in the charge in regard to this liability. It will be observed that this carriage went into this hole,and this lady was precipitated against her husband, and was injured. They then got out of the carriage and went to the sidewalk, and in coming back — whether in obedience to the call of the driver or in obedience to the call of the husband, is in dispute — but, at any rate, the woman started to come back to the carriage; the petition avers that her husband was with her, but it ^appears from her own testimony that he was not — that he stood by the driver,and she stood by the sidewalk — and she started to;®gol|back to the carriage, in company with her sister, and as they pushed through the crowd to do so, she stepped downjinto the hole.

The charge of the court was, that if they found against all of the defendants, the jury could only find in this particular case the damage which resulted from acts of all the defendants, to-wit, the combined act of all the defendants in leaving the hole unguarded and the carriagejnegligently going into the hole, which might exclude any damages which might have arisen by her afterwards from having walked into the hole herself.

Hurd, Brumback & Thatcher, for Plaintiff.

Doyle, Scott & Lewis, for The Toledo Transfer Oo.

B. H. Reno, for George B. Schultz.

King & Tracy, for Washington W. Tryon.

Without discussing the question further, we think the law was rightly given on that. The court took the pleadings as he found them, and they asked for a joint judgment against all the defendants, and the plaintiff in recovering such a judgment must have recovered it upon the facts set forth for damages to which all the defendants contributed.

We think it Sufficient to say we have discussed all the points which have been made by the brief, and have read and re-read this evidence, and we are of opinion that no error appears in the charge of the court, and that the verdict of the jury is sustained by .the evidence. The judgment will therefore be affirmed, but without penalty against Schultz.


author: Sibley, J.

text:
    (Fourth Circuit — Ross Co., O., Circuit Court
    Dec. Term, 1897.)
    Before Cherrington, Russell and ,Sibley, JJ.
    FIRST NATIONAL BANK OF PLYMOUTH v. BOARD OF EDUCATION OF HARRISON TOWNSHIP, ROSS COUNTY, OHIO.

      Public schools — Whai not ‘ ‘philosophical apparatus,” under see. 3995, P. 8. '
    What are known in this case as “Yaggy Geographical Cabinets,” may be furnished by Boards of Education for school houses, under section 3987, R. S. They do not- fall within the limita- . tion of 3995, as philosophical or other apparatus for the demonstration of any branch of education.
    Error to the Court of Common Pleas of Ross county,
   Sibley, J.

This case comes up by a petition in error, seeking to reverse the judgment of the common pleas. The facts are not in dispute. As set out in the record, they really present but a single question, which is, whether what is known as “Yaggy Geographical Cabinets” are covered bv the provisions of section 3987, or by those of 3995, Revised Statutes. If within the former, the plaintiff in error is admit-, tedly entitled to recover, and the judgment below must be reversed; otherwise, it should be affirmed,

By the agreed statement of facts, embodied in the bill of exceptions, these cabinets are described as follows:

“Each consists of a cylinder or box of wood or cloth-covered straw-board with hooks to fasten it to the wall; that inside of such box are a number of charts or maps, upon spring rollers, so arranged that when said charts or maps are rolled up, and not in use, they are protected from the dust and light, by said cylinder or box; that said charts or maps are colored drawings, of different natural and political divisions of the earth’s surface.”

A cabinet, attached to and made part of the bill, shows this description to be substantially accurate; that the charts are ordinary geographical maps, larger than those in books or atlases; that the box, springs, etc.,are devices designed, first, to protect the maps, and, second, to render their use more convenient to pupils and teachers.

We are clear that there is no conflict between sections 3987, and 3995. Each has its distinct field of operation, in entire harmony with the other. (Dunn v. Freed, 10 Cir. Ct. 294.) Difficulty arises only when it is sought to apply them to a particular group of facts — in discriminating the different classes of apparatus to which these sections respectively relate.

The case just cited decides that Kenedy’s Mathematical blocks are a “special apparatus for the demonstration of a special branch of education,” and so within section 3995; and the supreme court has held that Andrews’ Tellurian Globes fall into the same category, the record admitting that they áre apparatus intended for the demonstration of certain branches of education taught in township schools. (Board of Ed. v. Andrews, 51 Ohio St., 199.) These are the only adjudications upon the sections in question, and were they in no sense authority for us, would have our entire approval. Neither, however, seems to reach this case, and we therefore are left to decide it in the light of such an analysis of the statute and facts, as may appear to be sound.

That this “cabinet”, or round box, with rollers, springs, and to which the maps are attached, is an apparatus, is unquestionable. So, too, are the charts themselves. Each is a means to some end, which,according to the lexicographers, is sufficient to stamp them with that general character. But so are stoves to heat a school room and seats for the pupils who come there. Yet these latter, all will agree we apprehend, come under section 3987. To bring an appliance of this nature within section 3995, something beyond the mere fact that it is an apparatus is required. It must in addition be a “philosophical or other apparatus for the demonstration” of some, branch of education taught in a district school. This is clear by the express terms of the statute. How, then, stands the case with respect to this cabinet? That neither as to the box*. with its machinery, or the maps belonging thereto, it is a philosophical apparatus, is too apparent for argument. Even before the older division of phenomena, included in “natural philosophy”, was merged into what now is covered by the term “physics”, it could not be thus regarded, for the reason that this apparatus, so far as it relates to any branch of knowledge, refers to geography, which then was a.separate field of learning. Moreover, as respects the cylinder, rollers, and springs, that they contain nothing, in whole, .or as parts, for the demonstration of any branch of education, is equally clear. Manifestly not designed for such purposes, they cannot so be used. The only question left then is in reference to the charts or maps. Oan they properly be regarded as a device for the “demonstration” of geographical knowledge, to which, from their nature, they have some relation. We think not. What are these colored papers, indeed, but imperfect pictures used to aid the imagination in forming some idea of the natural and political divisions of the earth? When thus made, or if drawn more rudely upon a blackboard, by teacher or pupil, can it be said that they either prove or carry in them the slightest evidence for the truth of any fact so pictured? Whether or not such facts exist obviously must be shown, if at all, by other means. Hence, while illustratively aiding the mind in forming a conception of things otherwise established as true, and thus serving a useful purpose in education, like any other imaginary picture in relation thereto, they do not demonstrate the truths of geography. For demonstration, in the sense used in section 3995, must, as we conceive, be held to mean some degree of proof. One example of its import is the dissection of an animal body, with appropriate explanation. There, the actual facts are exhibited to the eye, and so seen to be such.

Opened thus, to direct observation, they are said to be demonstrated. But is it not evident that an anatomical chart, which merely pictures the same facts, though very accurately, would not be evidence of them — could not therefore be a demonstration of that branch of knowledge? In this respect, charts and maps of the kinds referred to, differ from blocks which can be used to prove a mathematical truth, and from Tellurian Globes, so constructed as when operated, to represent the relative motions of the earth and moon with respect to each other and the sun, and explain the various natural phenomena caused by such motions. The latter apparatus, by affording an explanation of what would result from the movements of heavenly bodies, furnishes in itself a known scientific method of proving the truth of •teaching upon that point — is therefore a mode of its demonstration. Argument hardly seems necessary to show that looking at or memorizing a geographical map, can have no such force or effect as respects geographical truths. In other words, it neither does, nor can be made to prove, and consequently can not in any admissible sense be said to demonstrate a fact which it pictures. '

Albert Douglas, for Plaintiff in Error.

L. B. Yaple and John C. Entrekin, for Defendant in Error-

With this view of the matter, then, we feel constrained to, say that these cabinets are not “apparatus” of the kind contemplated by section 8995,but fall within the furnishings which for common use in school houses, by pupils and teachers, may properly be provided- by boards of education. It follows, of course, that the judgment below must be reversed.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    NATHAN REUBEN v. JOHN SWIGART.

      Independent contractor obstructing street — When ovmer not relieved from, liability for negligence of contractor.

    (1). An owner of a city lot who obtains permission from the city to partially obstruct a street adjacent to such lot by placing thereon material to be us~ed in' the construction of a building on such lot — such permission being granted upon the condition that such owner shall maintain lights and guards, to warn travelers on the street of the presence of such obstruction, and who permits his contractor to place such material on the street, cannot escape liability to a traveler injured by such obstruction in consequence of the absence of such lights, or guards, on the ground that the alleged acts of negligence were those of an independent contractor over whom the owner had no control.
    (2). The owner of real estate who causes work to be done in relation to it, the probable consequences of the performance of which will be to endanger others in the legitimate use of a public highway, cannot shift from himself responsibility for these probable consequences by letting the work to an independent contractor over whom he reserves no control.
    Error to the Court of Common Pleas of Lucas county.
   Parker, J.

This is an action begun by the plaintiff' in error before a justice of the peace to recover from the defendant in error on account of injuries which the plaintiff says that he sustained in consequence of the defendant allowing an obstruction to be and remain upon'a street in the city of Toledo in front of the premises of the defendant. The cause was appealed to the court of common pleas, where a petition was filed by the plaintiff, an answer by the defendant, and to that the plaintiff replied. A general demurrer to the reply was interposed, which demurrer was sustained, and the plaintiff not desiring to plead further, judgment was entered dismissing the petition, and for costs. On account of that judgment, error is prosecuted here by the plaintiff in error, who was plaintiff below.

The petition is quite brief, and indeed all the pleadings are, and I can best state the case by reading from them:

“For a cause of action against the defendant John Swig-art, ¡he plaintiff herein says, that sometime prior to the loth day of January, A. D. 1896, the defendant John Swigart negligently and carelessly caused to be placed or permitted a pile or mound of sawdust to be put or remain at or near tbe middle of the street or public thoroughfare of the city of Toledo, known as Canton avenue, at a point about the middle of the block between Jackson avenue and Smith street; that at about 6 o’clock' P. M. on the evening of the 15th of January, 1896, the plaintiff was driving a horse and buggy along and through said street at the point aforesaid in a careful and lawful manner. It being dark, and no lights or guards being on or about said mound or pile of sawdust, the said Nathan Reuben, without any fault or negligence on his part, failed to discover the said pile of sawdust, and owing wholly to the negligence and carelessness of the defendant John Swigart aforesaid, the right fore wheel of the buggy in which plaintiff was driving struck said obstruction, and the vehicle was overturned, in consequence whereof plaintiff was thrown violently on the ground. That by reason of the premises the plaintiff was cut and bruised and otherwise injured, to his damage of $300.’’

For which he asks judgment.

To that an answer is filed, the first defense of which is a general denial and an allegation that if any injury resulted to the plaintiff it was through his own fault and negligence, The question here arises upon the fact set"forth in the second defense.

“For his second defense to plaintiff’s petition the defendant says that at the time of the alleged injury to the plaintiff, he, defendant John Swigart, together with his brother Eugene Swigart, were the owners in fee simple as tenants in common of lot No. 246 of Woodruff’s addition to the city of Toledo, Lucas county, Ohio, 'which said lot had a frontage upon the Canton avenue mentioned in the petition of about 59 feet, and was situated about the middle of the block between Shepherd street and Smith street in said city. Defendant further says that prior to the time of said alleged injury to plaintiff, .the defendant and his said brother had arranged for the erection' on said lot 246 of a three story brick mercantile building, which said building was at said time in process of erection, but not completed. Defendant further says that at he time of plaintiff’s alleged injury the defendant was not, nor was his said brother, in possession or control of said premises or building, or of the approaches thereto, or street in front thereof, and had not been in possession or control thereof for a long time prior thereto; that upon said date, and for a long time prior thereto, the said premises had been in the possession and control of one Hiram F. Hall: that the defendant and his said brother long prior to the alleged injury of plaintiff had duly enterd into a contract with the said Hiram F. Hall, whereby the said Hall had agreed to erect and complete the said building for the said defendant and his said brother on said lot 246 aforesaid, and to that end to make, perform, and furnish all the labor necessary to its erection, and to procure and pro'vide all necessary and proper material for the construction thereof. Defendant further says in and about the construction of said building, under and by the terms of said contract, said defendant was not, nor was his said brother, to have, nor could they, oi either of them have, any personal direction, control or authority over the said Hall, or over any of his laborers, employes or agents, as to how, or in what mode or manner he, or they, should perform or complete the said contract or erect or complete said building; nor was said Hall, nor were any of his agents, "laborers, or employes on said day or for a long time prior •thereto, in effect under or subject to any direction, control or authority of this defendant or of his said brother as to the mode or manner in which the said work or erection should be performed; nor did defendant or his said brother then or at any time attempt to exercise any such control, direction, or authority.”

This defense further sets forth that Hall, the contractor, took complete possession of the lot, and had such possession up to the time of the alleged injury, and that at the time the premises were put in the possession of Hall they were in all respects in a safe condition; that the pile of sawdust mentioned in the petition was not then upon the street, and that the defendant, at the time of the alleged injury, and at the time the sawdust was placed upon the street, was living in Cincinnati, so that he had no knowledge of the fact.

“Defendant further says that the sawdust mentioned in the petition was procured by said Hall for the purpose of filling in one. of the floors of said building for the prevention of noise, and solely for use in and about the construetion of said building, under the terms of the contract between said Hall and the defendant and his brother mentioned above, and when said sawdust was delivered at the said building, such delivery being as aforesaid about two hours prior to plaintiff's alleged accident, the same was placed almost entirely upon the sidewalk, etc.”

That said sawdust, if it was improperly placed there in the street, was placed there'by Hall or by his laborers, employes, or agents.

It will be observed that in the answer it is conceded that the contractor was to procure and provide all necessary and proper materials for the construction of the building, and that the sawdust, the pile of which is alleged to have caused this injury, was a part of the material which was furnished under the contract to go into the construction of the building.

To that the plaintiff filed the following reply:

“The plaintiff for reply to the second defense in the defendant’s answer herein says, that prior to the commencement of the construction of the building referred to in the plaintiff’s petition and the answer of the defendant filed in the above entitled action, the defendant herein, on application, was given the privilege or right,under section 622 of the Revised Ordinances of the city of Toledo, to place building material to be used in the construction of said building in the thoroughfare or street known as Oanton avenue, in said ‘city of Toledo. That by virtue of such permission given the defendant by the street commissioner, a mound or pile of sawdust referred to in the petition and answer, was placed in the street in front of the defendant’s said premises, but negligently and carelessly left in an ungarded and unsafe condition, and without lights to warn the public of its location, on the night the plaintiff herein was injured. That under sec. 626 of the Revised Ordinances of the city of Toledo the defendant herein was required to place guards around such an obstruction as the one herein referred to, and further provides that in case any accident should happen or injury result by reason of the failure to place said guards or lights around an obstruction of the kind referred to, the person giving said permission to obstruct the street would be liable for the damages resulting from such omission or want of care.”

ékS I have said, the general demurrer to that reply was sustained. The answer states the defense that the premises, including the part of the street in question, were not at the time of the alleged act of negligence and of the accident and injury complained of, under the control of the defendant, but were in the possession and under the contol of an independent contractor, who had undertaken to erect a building for defendant on the lot fronting the part of the street in question, and that the defendant had no right or authority to control or supervise the work of the contractor in the promises, and that he did not do so.

Defendant in error contends that the allegations of the reply, to the effect that permission had been granted to him to place materials in the street at this point, and that these materials were placed there under and in pursuance of said permission, and that the condition of such permission provided by the ordinance, imposing upon him the correlative duty to place guards or lights about the obstruction that might be placed in the street under this permission, does not state facts taking the case out of the general rule that ‘‘where a person contracts with another, exercising an independent calling, to do work for him, according to the contractor’s own methods and not subject to the employer’s control or order, except as to the results to be obtained, the former is not liable for the wrongful act of such contractor or his servants.”

The plaintiff, on the contrary, contends that these facts bring the case within one or more of the established- exceptions to the rule above stated. One exception to this rule is where the work which the contractor is employed to perform is necessarily dangerous to the public, or attended by a nuisance; and another is where a legal obligation to do a certain thing is imposed upon a person, and such person contracts with another to perform the work in connection with which this duty is imposed, and the contractor fails to perform the duty, to the injury of a third person. In neither of these cases, can the person employing another to do the work himself escape liability. It is not pretended that the case at bar comes within any other exception to the rule, but it is alleged that the facts bring it within one or both of these exceptions, We will find it convenient to consider the case further with the rule and these exceptions in mind.

The first case to which I call attention is that of Gray and wife v. Patten and Hubble, 117 Eng. C. L. Rep., 969. The syllabus reads as follows:

“1. Where a statutory obligation is imposed on a person, he is liable for any injury that arises to others in consequence of its having been negligently performed, and this whether it was performed by himself or by a contractor employed by him.

“2. A. was empowered under the Metropolis Local Management Act, 18 and 19 Vic. c. 120, ss. 77, 110, 111, to make a drain from his premises Jo a sewer, by cutting a trench across a highway, and filling it up after the drain should be completed. For this-purpose he employed a contractor, by whose negligence it was filled up improperly, in consequence of which damage ensued to B.: Held by this court, reversing the decision of the Queen’s Bench, that A. was responsible in an action by B.”

The opinion of the court was delivered by Erie, O. J., and covers a little more than a page of the report. I will read it:

“In this case the plaintiff declared for damage to his wife from falling into a drain made in the highway by the defendant. The defendant justified making the drain under a power given by the Metropolis Local Management Act, 18 and 19 Vic. c. 120, to make a drain from his premises to a sewer:

“Upon the trial it appeared that the defendant had lawfully made the drain under that act, that is to say, a trench which was across the highway, the cause of the damage, and had employed a contractor both to make it and to fill it up properly, and by the negligence of the contractor the drain was tilled up improperly, and so the damage was caused. At the trial the verdict was entered against the contractor and for the employer, on the ground that the employer was not responsible for the negligence of the contrc.ator, and so it was decided in, the court below, and this is an appeal from that judgment.

“The appellant contends that a duty was imposed on the defendant Pullen, as the owner of the premises who caused the drain to be made across the highway, to fill up that drain m a proper manner. Sec. 77, authorizing the making up of the drain, implies that the duty to fill it up was also imposed, and sec. 110 commands that the person who makes it shall fill it up properly, and the appellant contends that the person making the drain is responsible if the duty imposed on him by the statute is not performed and damage» is caused thereby, and that the complaint is of an omission to perform a duty imposed by statute,not of a wrongful act by a contractor beyond the scope of his employment. He relied on Hole v. The Sittingborne Railway Co., 6 H. & N., 488, where the duty imposed on the defendants by statute was to make a bridge that would open, and they employed a contractor who made a bridge that did not open as the statute required; and the defendants were held liable on the ground of their omission to perform the duty imposed by statute There the Chief Baron says, in effect, that the party who undertakes that a work shall be done is not released from liability for breach of his undertaking because he employed a contractor to do it, and the contractor’s neglect caused the reach; the obligation imposed by that is analogous to that created by an undertaking, the omission to perform which is not excused by reason that the party employed a third peison as contractor to do it for him who failed; and.he distinguished the case where a contractor in his contract does a wrongful act not according to his contract and causes damage thereby; in those cases the employer is not responsible. This distinction is also taken by William, J., m Pickard v. Smith, 10 C. B. N. S., 470, (E. C. L. R. vol. 100), deciding that the employer allowing a coal merchant to make an opening in a way for coal is responsible for the negligence of the coal merchant’s men in omitting to close the opening; for the employer was bound to see that the opening should be properly closed, and his omission to perform his duty is not excused by the omission of the agent whom he had employed to act for him.

“For these reasons it appears to us that the defendant Pullen is not excused from liability for omission to fill up the drain properly, on the ground that he had employed a contractor to do that duty for him, and the contractor was negligent and left the duty unpreformed. We think that the duty was implied in the grant of the power open the drain in a highway m sec. 77, hnd was expressed in sec. 110 and that this statutable duty is created absolutely, and is not a duty created by sec. Ill imposing a penalty to be enforced solely by enforcing the penalty. The penalty imposed by sec. Ill appears to us to be a cumulative remedy.

The question is, whether the verdict should be entered against the defendant Pullen, and we answer that question in the affirmative.’’

This case is similar to the case at bar, in thát a duty was imposed as a condition to the exercise of the privilege granted, But there the duty was imposed by the supreme law-making power of the state, while here its imposition is attempted by a municipal government of limited legislative and police powers. If, however, the obligation sought, to be imposed on the defendant by the city in the case at bar is .within the power delegated to the city, how does the case differ in principle from that cited?

It being made the duty of the city to keep the streets clear of obstructions that would make them dangerous to travelers, and the city being bound by law to respond in damages to one injured by reason of its failure in the performance of this duty; and the city being further empowered to grant such privileges as were granted to the defendant in this case; we think it clear that the city may impose upon the person to whom the privilege is granted, duties and obligations calculated to not only save the city from loss, but travelers from injury; and that such duties, so imposed, have the same effect as if imposed by the supreme law-making power directly, instead of indirectly through the city as an agency of government.

The statutes upon this subject, forming the basis of these remarks and conclusions, are sec. 6921 Revised Statutes, which makes it an indictable offense to obstruct a highway; sec. 2640 Revised Statutes, which gives the council the control of the streets in the following language:

“The council shall have the care, supervision, and control of all public highways, streets, avenues, alleys, sidewalks, public grounds, and bridges, within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.”-

Sec. 1692, the opening paragraph and sub-divisons 3 and 18 read as follows:

“In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.

“3. To prevent injury or annoyance from anything dangerous, offensive, or unwholesome, and to cause any nuisance to be abated.

“18. To layoff, establish, open, widen, narrow, straighten, extend, keep in order and repair, and to light streets and alleys, public grounds, etc.”

Also the general provisions authorizing municipalities by proper ordinances, resolutions, etc., to carry these provisions into effect.

Even if this duty shall be deemed to arise out of contract rather than legislative sanction, the result would seem to be the same. I call attention to the case of Water Co. v. Ware, 16 Wal. 566, the syllabus of which reads as follows:

“Where an incorporated company undertook to lay water pipes in a city, agreeing that it would ‘protect all persons against damages by reason of excavations made by them in laying pipes, and to be responsible for all damages which may occur by reason of the neglect of their employes on the premises;’ held, on the .company’s having let the work out to a sub-contractor through the negligence of whose servants injury accrued to a person passing over the street, that the company could be properly sued for damages.

“The city of St. Paul, desiring to have water pipes laid along the streets of the city, passed an ordinance authorizing the St. Paul Water Co., an incorporated company, to to lay them. But as it was necessary that large excavations of earth should be made along the streets, and considerable blasting of rock below, the ordinance in one of its sections provided as follows:

“ ‘The said water company expressly agrees to protect all persons against damages by reason of excavations made by them in the said city, in laying pipes, and to keep the said excavations properly guarded by day and night, and to become responsible for .all damages which may occur- by reason of the neglect of their employes in the premises, and that the streets and highways in said city shall not be unnecessarily obstructed or incumbered in laying said pipes. ”’

“The water company accepted the ordinance. It did not, however, do any work itself or by its own servants, but made a contract in writing with one Gilfillan to do the work for them. Under this contract, Gilfillan himself superintending the work every day, certain excavations, drillings, and blastings were made in different streets of the city.

“While these operations were going on in one of the streets, a certain Ware, driving his horse and wagon in it, was much, injured, owing to his horse taking fright at a steam drill in the street, put there to drill the rocks that it was necessary to remove, and suddenly and without notice set in motion. He accordingly sued the company -for damages.”

I will read one or two paragraphs from the opinion of the.court which was delivered by Mr. Justice Clifford:

“The evidence exhibited in the record shows that the defendants agreed with the municipal authorities to protect all persons against damages by reason of the excavations made by them preparatory to laying the pipes, and to keep the work properly guarded by day and night, and to be responsible for all damages which ‘may occur by reason of neglect of their employes in the promises;’ and that the streets should not be necessarily'obstructed or incumbered in doing the work. Such an agreement would not acquit the municipality of an obligation, otherwise attaching, to keep the streets safe and convenient for travelers, but it may well be held that a party injured through a defect or want of repair in such a street, occasioned by the neglect or carelessness of such a contractor in doing the work, or of those for whose acts he is responsible, may, at his election, sue the contractor for redress or pursue his remedy against the municipality, as it is clear that the contractor, in case of a recovery against the latter, would be answerable to the municipality as stipulated in his agreement.”

Again, reading from page 576:

“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; not where the obstruction or defect which occasioned the injury results directly from the ants which the contractor agreed and was authorized to do, the parson who employs the contractor and authorizes him to do those acts in equally liable to the injured party.”

It will be observed that in the case at bar it is alleged that this permission was obtained by the owner of the premises to place material upon the street at this place in the course of the erection of a building for him; that in pursuance of this permission the contractor placed materials upon the street, which caused the injury to the plaintiff. So that the placing of these materials there was in the line of the performance of his duty under the contract — a thing contemplated by him in the performance of his contract, a thing authorized by the person who had obtained the permission, and had undertaken and was bound to keep the lights and other guards around such materials or obstructions as would prevent injury to travelers upon the highway. I will read one further sentence from this opinion:

“It would be monstrous, said Lord Campbell, if a party causing another to do a thing were exempted from liability for the act merely because there was a contract between him-and the person immediately-causing the act to be done, which may be accepted as correct if applied in a case where the work contracted to be done will necessairly, in its progress, render the street unsafe and inconvenient for public travel. More than one party may be liable in such a case, nor can one who employs another to make such an excavation relieve himself from liability for such damages as those involved in the case before the court by any stipulation with his employe, as both the person who procured the nuisance to be made and the immediate author of it are liable.”

Our attention is called to a decision by the distirct court sitting in Hamilton county that-1 will not take the time to read from, which seems to support a contrary doctrine. That might have a controlling effect with this court if we had no utterance of our own supreme court upon the subject.

I intended to remark upon the reading of the authority of the United States Supreme Court just read from, that while civil liabiliy cannot be imposed by ordinance alone, it may be by contract resulting from the acceptance of privileges conferred by ordinance — the acceptance of privileges with conditions attached to the acceptance, and performance of the work under these privileges.

' I call attention to the case of Railroad Co. v. Morey, 47 Ohio St., 207, which,we think,is sufficient in pointjto control the decision in this case. I read from the®third proposition in the syllabus:

“One who causes work to be done is not liable, ordinarily, for injuries that result from carelessness in its performance by the employes of an independent contractor to whom he has let the work, without reserving to himself any control over the execution of it, But this principle has no application where a resulting injury, instead of being collateral and flowing from the negligent act of the employe alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable though the negligence is that of an employe of an independent contractor.”

The statement of the case is as follows:

“The defendant in error, George A. Morey, brought, in the Court of Common Pleas of Payette county, an action against The Southern Ohio Railroad Co., plaintiff in error, to recover damages claimed to have been sustained by him on account of himself and horse falling into a ditch that the plaintiff in error had caused to be dug and left unguarded, across Water street, in the town of Washington, in said county, on the night of November 9, 1885.

“The record discloses that the plaintiff in error, at the time of the accident, owned and operated a railroad which ran through said town of Washington, and occupied part of said Water street with its tracks, and owned and occupied a depot situate on lets owned by it, that were adjacent to said street. That the ditch causing, the injury had been dug during the day, the night of which the accident occurred, for the purpose of laying tiling for a drain from the depot above mentioned; that the ditch was dug entirely across that part of said street which was or could be used for travel; that it was from four to six or seven feet deep, about two and one half feet wide at the top, and about two feet wide at its bottom, and the earth from it thrown out two or three feet high on both sides; that the night was very dark, and the ditch left wholly unguarded. That the defendant in error, having no knowledge that the ditch had been dug, and without fault on his part, fell into it, together with his horse, and thereby received the injuries of which he complained, and that the ditch was, in fact, dug by a man employed by the firm of R. P. Willis & Son, who did the plumbing work for the depot.

“The main contention between' the parties at the trial was whether this plumbing was done under such an independent contract as would exonerate the railroad company from liability for the negligence of the contractor and his immediate servants.”

It will be observed that the work in this case was an excavation in the street. We do not see that there is any difference in the principles applicable to a nuisance of one sort that would make a street dangerous for travelers, and a nuisance of another sort making the street equally dangerous; for instance, an excavation in the street, and a pile of dirt or other obstructions in the street.

As to the amount of material in this street, in the case at bar, the location of it,etc., of course, we are bound upon this hearing to take as true the allegation of the plaintiff’s pleadings that there was a large amount of saw-dust near to the middle of the street that interfered with public travel. Again quoting, the court says on page 213:

“The only serious question in the case is presented by .charges given or refused by the court.”

The court among other things charged the jury as follows:

“If the necessary or probable effect of the performance of the work would be to injure third persons, or create a nuisance, then the defendant is not relieved from liability because the work was done by a contractor over whom it had no control in the mode and manner of doing it.”

To this the plaintiff in error excepted.

■ “The question is here presented whether the owner of real estate, who causes work to be done in relation to it,the probable consequences of the performance of which will be to endanger others or to create a nuisance, can shift from himself all responsibility for these probable consequences by letting the work to an independent contractor over whom he reserves no control? Will a sound public policy permit this to be done? If so, then we may expect the prudent proprietor, when he has work to be done which involves these probable consequences, to provide for its performance by a carefully guarded contract by which he retains no control over at whatever.”

A. H. Coldham, for Plaintiff in Error.

Porks & Van Campen, for Defendant in Error.

The court proceeds to distinguish the case of Clark v. Fry, 8 Ohio St., 358, and discusses, at some length, the principles involved, arriving at the conclusion that in a case like that before the court the plea that the work was done by an independent contractor would not avail. In support of this a case in 149 Mass., 335, is also cited, which we think tends to support the doctrine.

There are various subsequent utterances by our supreme court upon the subject which are not precisely in point, but which show that the court has approved the doctrine announced in the case from wbich I have just read.

The court, in announcing the opinion in Railroad Co. v. Morey, has taken care to say that the doctrine of Clark v. Fry would not be extended by the court, and was not the rule to be applied in a case like the one then under consideration. In Clark v. Fry the l’ecord did not disclose that the excavation in question extended so far into the street as to impede public travel, or so as to become a nuisance, and that element seemed to be absent from the case.

Our conclusions, then, upon this matter are, that the demurrer to the reply should have been overruled; that the court erred in sustaining this demurrer; and therefore the judgment of the court will be reversed, the cause will be remanded with instructions to the court to overrule the demurrer to this reply.