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seq.) that a municipal corporation is tions after the work had been comnot liable for injuries caused to a pleted.8 traveler by dangerous conditions in a A person using a highway was inhighway, resulting from the negli- jured by a fall of a heavy object from gence of a contractor employed to a building. The occurrence of an acperform work thereon, is not appli- cident of this description raises a precable to cases in which the evidence sumption of negligence on the part of shows that the corporation itself was the employer, and casts upon him the chargeable with negligence in having burden of disproving his culpability.ga failed to remedy the dangerous condi- A person using a highway was inwas rested were thus stated : “The to be entitled to recover for an injury evidence shows a substantial abandon- caused by the fall of an awning, which ment of the contract by Daxon, and as had been accepted by the defendant a matter of fact he never did carry more than a year before the accident, out the first contract, but finally com- the court approved the refusal of the pleted the removal of the building un- trial judge to instruct the jury that, der a new agreement. We are of the if they believed from the evidence that opinion that after Daxon removed his the awning was erected by a comtrucks from the building for the pur- petent independent contractor, over pose of doing other work, plaintiff in
whose workmen the defendant exererror, as the owner of the building, cised no control, “and accepted by the and as between himself and the pub- defendant in apparently good conlic, was bound to take care of it, and dition, then they must find for the deprevent its continuance as a nuisance fendant, unless they shall further or obstruction to the highway."
believe from the evidence that some 8 Burger v. Philadelphia (1900) 196
defect existed in the awning at the Pa. 41, 46 Atl. 262; Rimby v. Philadel- time of its acceptance, or subsequently phia (1904) 208 Pa. 119, 57 Atl. 347
developed therein, which should have (bicycle ran into rut created by wear been discovered by the defendant in and tear of planking laid between rails
the exercise of ordinary care, or unof street railway); Harvey v. Chester
less they shall further believe from (1905) 211 Pa. 563, 61 Atl. 118; Goff
the evidence that said awning was v. Philadelphia (1906) 214 Pa, 172, 63 negligently used and managed." The Atl. 431 (pedestrian fell into trench
court said: "While negligence is dug by plumbers in sidewalk for the
never presumed from the mere fact of purpose of performing work completed injury, yet an injury may occur under about a week before the accident);
such circumstances as will warrant an Meyers v. Philadelphia (1907) 217 Pa.
inference or presumption of negli159, 10 L.R.A.(N.S.) 678, 66 Atl. 251.
gence. This is so where the defend9 In Khron v. Brock (1887) 144
ant owes to the plaintiff a duty to use Mass. 516, 11 N. E. 748 (piece of zinc
care, and the thing causing the injury fell, while roof was being repaired),
is shown to be under the management where it was a disputed question
of the defendant or his employees, and
the accident is such that in the ordiwhether one B., who had contracted with the defendant to make certain
nary course of things it does not occur
if those who have the control or l'epairs on the roof of his house, had completed his contract, the court dis
management use proper care. It is
well settled that, where a pedestrian approved of certain requested instruc
traveling along a highway is injured tions, which, if given, would have relieved the defendant from any re
by the fall of an awning attached to sponsibility, if the carelessness of B.
a building (and no issue is raised as in leaving a certain piece of zinc un
to the awning being a nuisance), the fastened was the primary cause of the
liability of the owner or occupier of
the house is to be determined upon the injury. Such instructions would nec
principle of negligence in accordance essarily imply that the owner of the building was not responsible for the
with the phrase or maxim, ‘res ipsa unsafe condition, even if the contrac
loquitur;' or, in other words, an intor had completed his contract and
jury under such circumstances is held had ceased to work.
to warrant the presumption of negli9a In McCrorey V. Thomas (1909) gence, which puts the burden upon 109 Va. 373, 63 S. E. 1011, 17 Ann. the defendant to disprove the existCas. 373, where a pedestrian was held ence of negligence by evidence that jured by reason of negligence in re- A section of a barge, wrecked after spect of the operation of a plant.10 it broke loose from the moorings by
A person was injured when using a which a contractor had secured it in defective footbridge.11
a harbor, came into collision with a A ship was damaged by an obstruc- jetty under construction, and caused tion in a river. 12
the loss of a pile driver.13 as a matter of fact all proper and not liable for the negligence which reasonable care had been employed.” caused this injury, because the piles "In the event the jury had believed were not placed in the channel by its that the awning had been erected by servants, but by those of the contraca competent independent contractor tors; and that the case was not altered and accepted by the defendant from by the fact that the contractors were him in an apparently good condition, directed to do so by the engineers, who the instruction would have required were the servants of appellants. This the plaintiff, in order to recover, to contention did not prevail. The court prove that some defect existed in the said: "If the contractors had proceedawning at the time of the defendant's ed to complete their contract, and left acceptance, or subsequently developed the piles in the condition complained therein, which should have been dis- of, this defense to the action might covered in the exercise of ordinary have availed the appellants. But, as care, or that the awning was negli- the driving the piles for the legitimate gently used or managed. To have purpose of the erection was by auplaced this burden upon the plaintiff thority of the law and in pursuance of in a case like this would have been the contract, the contractors had done clearly erroneous.”
no wrong in placing them there. The 10 In Orient Consol. Pure Ice Co. v. nuisance was the result of the negliEdmundson (1911) – Tex. Civ. App. gence in cutting off the piles, not at
140 S. W. 125, the liability of the the bottom of the river, but a few feet defendant company for a fatal injury under the surface of the water. This occasioned to a child by the discharge the contractors were bound to do, of mud and water from a blowpipe after the piles had served their legitiwas affirmed on the ground that the mate purpose in the construction of undisputed evidence showed that at the bridge, and after they had comthe time of the accident the company pleted their contract. But, before was operating and using the machin- this, the railroad company determined ery installed by the contractor. The to discontinue the erection of the child was injured while on a railroad bridge. They dismissed the contracright of way which was used as a tors from the further fulfilment of thoroughfare by the public.
their contract. Under such circum11 In Indianapolis Water Co. stances, it became the duty of the apHarold (1906) Ind. App. —,79 N. pellants to take care that all the obE. 542, where the plaintiff's son fell structions to navigation, which had off a log which the servants of a con- been placed in the channel by their tractor had laid to serve as a foot- orders, and for the purpose of their bridge over a canal, the principal em- intended erection, should be removed. ployer was held liable on the ground The nuisance which resulted from of his having allowed the dangerous leaving the piles in this dangerous condition to continue after the con- condition was the consequence of their clusion of the stipulated work.
own negligence, or that of their serv12 In Philadelphia, W. & B. R. Co. v. ants, and not of the contractors." Philadelphia (1859) 23 How. (U. S.) 13 In Miami Quarry Co. v. Seaborg 209, 16 L. ed. 433, a steamer was in- Packing Co. (1922) 103 Or. 362, 204 jured by coming in contact with one of Pac. 492, a barge of considerable size, the sight piles driven into the channel belonging to the defendant company, of a river by contractors for the began to take in water so rapidly, erection of a railway bridge. The con- while it was being towed from one seatractors had agreed to "provide all port to another, that the captain, with necessary machinery, etc., and to fur- the view of preventing a total loss, nish (and remove, when done with) hauled it into an intermediate harbor all scaffolding and piles that might and beached it. Having moored it, be used while building." It was argued he notified the defendant of what he by the railway company that it was had done, and of his inability to com
$ 3. Necessity of showing that the em- possible exceptions referred to in the
ployer had notice of the dangerous second and third paragraphs of g 2, conditions which caused the injury
the imputation of liability was ascomplained of.
sumed to be conditional upon the proAn examination of the cases in duction of evidence that the employer which claims have been held to be had notice, actual or constructive, of enforceable under the general doc- the existence of the conditions which trine (see preceding section) will caused the injury complained of. Some show that, in all of them, with the affirmative authorities for this rule are plete the voyage.
The defendant's which the law attaches to the exercise president and secretary went to the of the control, and the mere fact that harbor a few days afterwards, and the dangerous conditions which cause took possession of the barge and re- the injury were originally created by moved everything of value from it, in- the negligence or other tortious act cluding its anchor. The company thus of a contractor will not afford him became responsible for its secure any protection if he permits them to mooring, and tied it with three light continue after it is in his power to lines to piles on the beach. It after- remove them.' 14 R. C. L. 66. While ward engaged one C. to take the barge the barge laid (sic) upon the beach from the place where it was beached in Yaquina bay, defendant owed a to another part of the harbor, but he duty to plaintiff, and others in like abandoned the undertaking without situation, to exercise reasonable care materially changing the position of to secure and moor the barge in such the barge, and left it moored substan- a manner that it would not be carried tially as it was when he was employed away by ordinary wind and tides. to move it, and promptly notified de- Defendant did not employ Copeland fendant of his action. Upon receiv- to safely secure and moor the barge ing this notice from C., that he was no in the position it occupied on the longer looking after the barge, the beach, but, if it had, the barge was so defendant's officers dismissed the mat- situated that it was liable to shift its ter from their minds; they made no position and become dangerous to the effort to ascertain whether the barge property of others and defendant was safely secured and moored, and could not, in such circumstances, retook no precautions to prevent the lieve itself of the duty to exercise barge from being carried away by the reasonable care to safely moor the action of winds and tides. More than barge by employing an independent a week afterward, a period which, in contractor. Where a party is under the opinion of the court was ample a duty to the public to so care for to have enabled the defendant to dis- property owned by him that it will charge the duty which devolved upon not injure the property of others, that it, of ascertaining what was reasonably duty is absolute, and cannot be delerequired to make the barge safe, and gated to an independent contractor. taking the necessary precautions, it
The evidence not only does floated at high tide, and, breaking not show that responsibility for the loose from its moorings, drifted out acts of negligence complained of were of the harbor, and was dashed in those of an independent contractor, pieces on the shore of the ocean. One but it established as a matter of law of the sections was then driven by that the responsibility was that of the wind and waves against a jetty under defendant, and not that of an indeconstruction at the mouth of the har- pendent contractor.” bor, and broke off several of the 1 In Tarry v. Ashton (1876) L. R. "bents” of the piling, the result being 1 Q. B. Div. 314, 45 L. J. Q. B. N. S. that the plaintiff's pile driver was 260, 34 L. T. N. S. 97, 24 Week. Rep. 1.hrown into deep water and entirely
581, 19 Eng. Rul. Cas. 4, Blackburn, lost. Held, that the defendant was liable for the injury thus caused. The
J. (see passage quoted from his judgcourt said: “As soon as an independ
ment in § 2 note 5, supra), declined to ent contractor transfers the control
lay it down categorically that the emof the subject-matter of the contract
ployer would not be liable for an into the employer, whether upon com- jury caused by a latent defect. But, pletion or stoppage of the work, the having regard to the cases as a whole, employer incurs the responsibility it may, perhaps, be inferred that his referred to in the footnote.? The solutely bound to construct in such a rule has, of course, no application manner that the safety of persons beto cases in which the injury com- longing to the class of which the plained of was due to defects in a claimant is a member should not be building which the employer was ab- imperiled.3 remarks in this connection were made fense relied upon was that no notice ex abundanti cantelá.
of the defect had been given, in ac2 Neumann v. Greenleaf Real Estate cordance with a clause of the city Co. (1898) 73 Mo. App. 326; Chartiers charter providing that it should not be Valley Gas Co. v. Lynch (1888) 118 liable “to any person for damages for Pa. 362, 12 Atl. 435.
injuries caused from streets, ways, In Corliss v. Keown (1910) 207 crossings, bridges, or sidewalks being Mass. 149, 93 N. E. 143, where a de- out of repair, from gross negligence fect in a vehicle caused by the negli- of said corporation, unless the same gence of the mechanic who had re- shall have remained so for ten days paired it caused a horse to run away, after special notice in writing given the evidence warranted the conclusion to the mayor or street commissioner." that neither of the defendants was This provision, however, was held not personally negligent in failing to dis- to be applicable to the case at bar. cover the defect, and that the mechanic The court said: “There may be some "was not acting as the servant of reason in requiring notice to the city either of the defendants in repairing authorities of a defect accruing from the carriage, but was working under ordinary causes, such as the action an independent contract, which gave of floods, the use of the street by him entire control of the business of the public, or, it may be said, from making such repairs as he thought any cause except by the action of the necessary, for which he was to be paid city itself. But in the present case the a reasonable price."
city put a contractor to work upon the In Casey v. Wrought Iron Bridge Co. street, stipulating to have an excava(1905) 114 Mo. App. 47, 89 S. W. 330, tion made which was to be filled with where the plaintiff was injured by the gravel, and, after the work had been fall of a bridge accepted by the county begun and the street had been rencommissioners, who had employed the dered unsafe for travel, discharged defendant to build it, the nonliability the contractor and left the work in an of the county was affirmed on the unfinished condition. This action was ground that the defects in the struc- taken by the very officers to whom the ture could not have been detected charter required the notice of defects by a reasonably careful inspection. to be given. The city is not sought to The contention that the county was be held liable for any injury caused charged with responsibility on the by a defect accruing from any exground that the bridge was a nuisance, trinsic cause whatever, but for having, as being a dangerous obstruction to by its own procurement, made the the highway from the beginning, was street unsafe and knowingly left it in rejected.
that condition.” In Goff v. Philadelphia (1906) 214 3 In Goodwin v. Mason (1916) 173 Pa. 172, 63 Atl. 431, where a danger- Iowa, 546, 155 N. W. 966, where the ous depression had remained in a side- action was brought to recover for inwalk about a week after a contractor juries received by a traveler upon had finished the work which created it, whom a defective wall fell as he was notice was held to be imputable to the walking along a street, it was held city.
that the trial judge should not liave For other cases involving the ques- instructed the jury that the defendtion of notice to municipalities, see, ants were responsible for the alleged 88 8 and 9 of the monograph in 25 defects only if they were known to deA.L.R. pp. 426 et seq.
fendants, or were such as should have In Houston Isaacks (1887) been known in the exercise of ordi68 Tex. 116, 3 S. W. 693, an accident nary care. The court said: “The dewas caused, a few days after the city fects complained of, if any there were, had dismissed a contractor, by a hole were in the original construction of which he had left in a street which he the building, and not such as must had undertaken to gravel, and the de- have been detected subsequently in its
A discussion of the decisions which thing which is the subject-matter of bear upon the extent of the employer's the contract can be manufactured, obligation to enter upon an active in- constructed, or repaired only by a pervestigation for the purpose of ascer- son possessing special skill, the pertaining whether there are any danger- son who engages him to manufacture, ous defects in the product or results construct, or repair it is entitled, in of the contractor's work does not fall the absence of facts which would put within the scope of this monograph. a prudent man on inquiry, to presume It will be sufficient to state that the that the work has been properly done.* preponderance of authority, in the This doctrine, however, affords no proUnited States at all events, is distinct- tection to the employer, where the ly in favor of the doctrine that, if a work is performed under the direct necessary inspection. For this rea- livered to him, it is in a fair and rea
no question or knowledge was sonable condition for use." involved. Defendants, having con- "If I employ a well-known and structed the building, are presumed to reputable machinist to construct a have known the manner in which this steam engine, and it blows up from was done; and, as they were required bad materials, or unskilful work, I am by the law to see to it that it should not responsible for any injury which be constructed in an ordinarily care- may result, whether to my own servant ful and skilful manner, they were
or a third person. The rule is difcharged with knowledge of any omis- ferent if the machine is made accordsion so to do, and liable for the natural ing to my plan, or if I interfere and consequences following therefrom.” give directions as to the manner of its
4 In Richmond & D. R. Co. v. Elliott construction. The machinist then be(1892) 149 U. S. 266, 37 L. ed. 728, 13 comes my servant, and respondeat Sup. Ct. Rep. 837, where a servant of superior is the rule.” Ardesco Oil Co. a railroad company other than the de- v. Gilson (1869) 63 Pa. 146, 10 Mor. fendant was injured by the explosion Min. Rep. 669. of a locomotive boiler, the general In Anderson v. .
Hays Mfg. Co. principles governing the case were (1903) 207 Pa. 106, 63 L.R.A. 540, 56 thus formulated with reference to the Atl. 345 (hotel injured by explosion of new trial ordered: "If the railroad boiler three months after it had been company after purchasing this engine repaired), the evidence showed that made such reasonable examination as the manager, who was the sole reprewas possible without tearing the sentative of the defendant company, machinery to pieces, and subjected employed skilled and reputable boiler it fully to all the ordinary tests makers to examine and repair a leakwhich are applied for determining ing boiler; that they worked at the the efficiency and strength of com- boiler and made some repairs, and pleted engines, and such examination then reported to the manager that they and tests had disclosed no defect, had performed the work intrusted to it cannot, in an action by one who them; and that the manager was not is a stranger to the company, be an expert, knew nothing of the mechadjudged guilty of negligence be- anism of boilers, and did not examine cause there was a latent defect-one or assist in the actual work of repair. which subsequently caused the de- Held that, under such circumstances, struction of the engine and injury to the company was not liable. The court such party." "With regard to the de- said: "If [the company) selected skilfect in the iron casting, which seems ful and competent mechanics to make to have been revealed by the explo- the repairs deemed necessary by them sion, it may be said that it is not neces- to insure the safety of the boiler, and sarily the duty of a purchaser of ma- they reported that the necessary rechinery, whether simple or compli- pairs had been made, and if aftercated, to tear it to pieces to see if wards, in the interval between the rethere be not some latent defect. If he pairs and the explosion, competent inpurchases from a manufacturer of spectors reported in substance that recognized standing, he is justified in no further repairs were needed, and assuming that in the manufacture if either, without knowledge of deproper care was taken, and that proper fendant, neglected his duty, the detests were made of the different parts fendant is not responsible for that of the machinery, and that, as de- neglect. There was no personal duty