Wilson & Brother v. White , 71 Ga. 506 ( 1884 )

Hall, Justice.

The owner of a lot in the city of Atlanta contracted with the defendants to furnish material and lay a pavement on the street adjoining said lot. The defendants hauled the brick for laying the pavement, and piled them up in the gutter beside the place where the work was to be done. They engaged the services of one Backus to provide the-sand and lay the brick, agreeing to pay him a stipulated price per yard for the work. Having no lamps of their own, they also requested Backus to provide signal lights and place them upon tho brick, while the improvement was going on and while the street was obstructed. The plaintiff, in going along the sidewalk at night, and for the want of a light, as she alleged and proved on the trial, came in contact with the brick deposited at that point, and was seriously injured. She brought her suit against these contractors to recover damages for the injuries she sustained. Among other defences set up by them, was the fact that Backus was the contractor in charge of the work at the time of the action, and he, if any one, was liable for the wrong, and that they were not.

To this defence two replies were made. First: That Backus was not a contractor, but merely the servant of the defendants, who were in fact the contractors and the responsible parties for the injury. Second: ’ That whether Backus was a contractor or not was immaterial, inasmuch :as the defendants were the owners of the material which caused the injury, and were required by the ordinances of the city to put lights thereon at dark, and “ so to place ;and prepare them with such diligence and care as to provide and reasonably insure the burning thereof until daylight,” and that they could not escape responsibility to •any one injured by carelessness in this respect by agreeing with another to discharge this duty to the public which had In express terms been enjoined upon them by law.

1. “Unquestionably,” says Williams, J., who delivered •the judgment of the court, in Pickard vs. Smith, 10 C. B. (N. S.), 470, (100 E. C. L. R.), “no one caribe made liable for an act or breach of duty, unless it be traceable to himself or his servant or servants in the cause of his or their employment. Consequently, if an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong , or negligence, the employer is not responsible. To this effect are many authorities, which are referred to in the ..argument. The rule is, however, inapplicable to cases in which the act which occasions the injury is one which the contractor was employed to do; nor, by a parity of .reasoning, to cases in which the contractor is entrusted with ;a duty incumbent upon his employer, and neglects its fulfillment, whereby an injury is occasioned.”

Now, was Backus an independent contractor? Was the negligence complained of merely casual on his part ? or was he, entrusted with the performance of a duty incumbent upon the defendants, which he neglected to.fulfill, and in consequence of his neglect was injury occasioned to the plaintiff? If his trust was of the latter character; the defendants are liable for his failure to perform it, but if he was an independent contractor, and the act or negli gence complained of was merely casual, then they are not responsible for the injury resulting therefrom. But unless the defendants had relinquished their control over this work to Backus, and had nothing further to do with it, either in furnishing material or otherwise, except to see that it was done to the satisfaction of their employer, then' Backus was not an independent contractor, but was their agent and servant, and his act or negligence was theirs, and the responsibility was upon them to answer for any damage done to another in consequence of his failure to perform his duty. See the opinion of the circuit judge, which was fully adopted by the Supreme Court of Pennsylvania, in Homan vs. Stanley and the cases therein cited and commented on, 66 Penn. St. R., 464, (5 Am. R., 389, 391, 394); 2 Thompson on Neg., 902-907 inclusive and citations.

If, however, Backus was an independent contractor, he was not the owner of the material that' occasioned this injury, and was not charged by the law of the municipality with its care, nor was he bound to provide signal lights to notify passengers on the street of the danger they were approaching, and to' warn them from it. There is no question that defendants owned this brick, and just as little question that it was their duty, by the city ordinances, to keep lights on it, as a safeguard to persons passing along against injury from the obstructions it caused.

In Gray vs. Pullen, 5 Best & Smith, 970, (117 Eng. C. L.R.),'the court of Exchequer Chamber, reversing the decision of the court of Queen’s Bench, held that 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. In delivering the unanimous judgment of the court, Earle, C. L, cites and relies on the case of Pickard vs. Smith, ut slip., and also upon Hale vs. The Sittingbourne Railway Company, 6 H. & N., 488.

In the first of these cases, it was said by th,e judge who delivered the opinion, “ the defendant employed the coal merchant to open the trap in order to put in the coal; and he trusted him to guard it while open and to close it when the coals were all put in. The act of opening it was the act of the employer, though done through the agency of the coal merchant; and the defendant having thereby caused danger, was bound to take reasonable means to prevent mischief. The performance of this duty he omitted; and the fact of his having entrusted it to a person who also neglected it, furnishes no excuse, either in good sense or law.” Lord Oockburn, 0. J., of the Queen’s Bench, in Bower vs. Peate, L. R., 1 Q. B. Div., 341, after quoting largely from this case, adds: “ In Gray vs. Pullen, the court of Exchequer Chamber carried this principle still further. An act of parliament having authorized the cutting of a trench across a highway, for the purpose of making a drain, but having attached to the exercise of the right the condition of filling up the trench after the drain had been completed, the defendant had employed a contractor to do the whole work. Owing to the negligence of the latter in filling up the trench, the plaintiff’s wife had sustained personal injury. It was contended that the contractor alone was liable, and it was so held in this court, but the court of Exchequer Chamber held otherwise, and reversed our judgment. It is true that in that case the obligation to make good the road was one imposed by statute; but it can make no difference in point of principle whether the obligation was imposed by statute or existed at law; and the case is therefore an authority for saying that where a work is being executed from which danger may arise to others, and it thereby becomes incumbent on the party doing or ordering it to be done to take measures to prevent damage resulting to others, he cannot divest himself of liability by transferring the duty to a contractor.” In Tarry vs. Ashton, the same nigh court (Q. B.), Ib., 314, applied this principle to the occupier of premises from which a large lamp was suspended over a highway, which lamp, before the occupation by the tenant, had become worn out. The defendant had notice of this, and it was held that, if he continued to maintain the lamp, he was under an obligation to take care that it was not a nuisance to the highway, and if it fell down and injured a person passing, he would be liable, though he had employed a contractor to attend to its condition and keep it in order. To the like effect is 2 Thompson on Neg. and citations, and Homan vs. Stanley ut sup.

The portions of the judge’s charge to which exception was taken, in the present case, conform to these decisions, and in our opinion laid down the law correctly. Consequently there was no error in refusing to charge, as requested in writing by defendants’ counsel, that if the defendants sub-let the work to Backus by contract for so much per yard, then Backus would be a contractor, and they would not be liable, if the injury was caused by the negligence of Backus or his servants.

Neither do we think that there was error in refusing to charge that, £‘ if the lights were in point of fact displayed, the lamps properly filled and lighted, and were, from some unknown cause extinguished, or from no negligence of defendants, that was all the law required; that it did not require the defendants to stand guard over the lights all night.” This charge would certainly not have been in accordance with the city ordinance which was before the court, and which, as we are advised, formed the basis of the request; it required the owner of the materials which made the obstruction, to prepare and place the lights thereon before dark, “ with such care and diligence as reasonably to secure their burning until daylight.” But apart from this ordinance, we have seen that it was the duty of the defendants, under the law, to take precautions against injury to persons passing along the street, from the obstacles so placed in it, and that responsibility for a failure to comply with such requirement could not be avoided by trusting the discharge of this duty to another who neglected its fulfillment, whether he was contractor or agent or servant.'

2. The plaintiff testified that, after she received the injury which this suit is brought to redress, she had nothing to go on, and had to sell her house and lot to get money to live on, in consequence thereof. The defendant objected to this testimony, but the record does not show the ground of objection; the evidence was admitted over the objection. The court is not bound to notice objections of this character. They are too general to admit of the formation of any issue of law. No reason occurs to us why the testimony was not competent; it at least showed the serious extremity to which the plaintiff was reduced; it did not show the amount of her loss by reason of the sale, and formed no element in the computation of any special damage which entered into the finding by the jury in her favor. It was. one of the immediate consequences of the injury, and was not an irrelevant fact in the ascertainment of general damage resulting directly from the wrong of which she was the victim.

3. The judge was required by the counsel for defendants to put his charge in writing, and mentioned this fact to the jury to explain his departure from his usual custom of charging them orally, and this explanation is made a ground of exception. In Head vs. Bridges and others, 67 Ga., 235, this court expressed an opinion, that the better practice in such cases would be, not to state to the jury at whose instance the request was made, but a reversal was refused on that ground. We think that such a statement, if it be error at all, is not reversible error, unless it can be affirmatively shown that the party complaining was thereby prejudiced, and that, in most instances, all allusions to it, either in the motion for a new trial or the bill of exceptions, had better be omitted.

4. The verdict is neither contrary to law nor is it unsupported by the evidence; it seems, on the contrary, to be sustained by the weight of the evidence.

We have been much aided in our. investigations by the well arranged briefs of counsel, especially by that of the counsel for defendant in error, which admirably classifies and distinguishes the cases really bearing upon the questions in issue, fiom those which have only a seeming application to the points contested. Some of these distinctions were nice, and though real, might have escaped our observation had they not been pointed out by the skilled labor of counsel learned in the law.'

Judgment affirmed.