Gilbert v. New Mexico Const. Co. , 39 N.M. 216 ( 1935 )

I am in accord with the view of Mr. Justice HUDSPETH that the judgment in favor of the appellee against the appellant ought not to stand, and much for the same reasons. Because of the importance of the question involved, I deem it proper further to set forth my views.

The prevailing opinion recognizes as sound the proposition that a municipal corporation, which has assumed to protect against fires by installation of waterworks system and fire department, is not liable for fire losses due to lack of or insufficient water; I concede that ordinarily this is so. I concede that while a municipal corporation is actually rendering the service of extinguishing a fire, and an immediate benefit is thus being received by a householder, as to all third persons, there is, then, a substantial right and interest in the householder to such service which carries with it the further right to be protected against its invasion by third persons, and that at the moment such a corresponding duty on the part of third persons not to unlawfully interfere therewith. For a breach of such duty by third persons there is a corresponding liability. These propositions are stated by the Wisconsin Supreme Court in Concordia Fire Insurance Co. v. Simmons Co., 167 Wis. 541,168 N.W. 199, 200.

However, the Wisconsin Supreme Court recognizing this rule, carried it "one step further," declaring: "We see no good reason why this rule should not be carried one step further, and, as applied to the facts stated in this complaint require us to hold as we now do that so long as the householder or inhabitant of the city is in the position to receive, and the municipality is ready and willing to continue such service, the person who interferes with such relationship between the municipality and its inhabitant, and thereby causes injury to such householder or inhabitant, must respond for such damages as may be directly traceable to his interference as a proximate cause."

Conceding for the moment that going this "one step further" might be warranted in some cases, I am unwilling to enlarge the rule and to apply the exceptional doctrine there announced, any further than has the Wisconsin Supreme Court.

The appellant has been able to urge that this case stands alone and should not be followed. I am unwilling to apply that decision to a case which is so plainly distinguishable.

In the Wisconsin case the interferer was a stranger and a trespasser upon the city's property. It was "an unwelcome guest, an invader, an interloper." Highway Trailer Co. v. Janesville Electric Co., 187 Wis. 161, 204 N.W. 773, 778. Here the alleged interference with the city fire department was by the city itself through its servant, the construction company, working in its street department under "control and direction of the work in all respects" of the city engineer who in turn was "under the authority and direction of the City Council." It was employed to do the work embraced in its contract "so as to conform to the directions of the City Engineer * * * as to the mode of doing the same not inconsistent with the said specifications." The contract of employment contained provisions which are thus described in plaintiff's complaint, and the contract was introduced in evidence in support thereof:

"When the contractor is not present on the work, orders will be given to the superintendents or overseers in immediate charge thereof by the City Engineer, and shall by them be received and obeyed; and if any person employed on the work shall refuse or neglect to obey the instructions of the City Engineer in any way relating to the work; or shall appear to said Engineer to be incompetent, disorderly or unfaithful, he shall, upon the requisition of said Engineer, be at once discharged and not again be employed on any part of the work unless re-instated with the consent of said Engineer.

"The contractor will be required to observe all city ordinances, in relation to obstructing the streets, maintaining signals, keeping open passageways and protecting the same where exposed; and generally to obey all the laws and ordinances controlling or limiting those engaged on the work; and the contractor hereby expressly agrees to indemnify and save harmless the City of Roswell from all suits and actions of every nature and description brought against said City for or on account of any injuries or damages received or sustained by any party or parties through the negligence or carelessness of the contractor or its employees, or by or from acts of the contractor or its servants or agents in the performance of their duties in doing the work herein contracted for, in consequence of any negligence in making said improvements, or in any improper materials used in its construction or by or on account of any acts of omissions of the said party of the first part, its servants or agents."

"4. That by the terms of said Contract, as heretofore set out, the City of Roswell retained control and direction of the work through its engineer, and the contractor assumed all responsibility for damages sustained to persons or property due to the carrying on of the work, or by or on account of any act or omission of the contractor, or of his agents, servants or employees."

The complaint also alleged: "12. That by the terms of section 3660 of the New Mexico Code of 1915 the City Council of the City of Roswell is given the care, supervision and control of all public highways, bridges, streets, alleys, public squares and commons within such city, and is required to keep them open and in repair and free from nuisances. That the City of Roswell, although supervising said work through its engineer, and although required to keep such streets in repair and free from nuisances, and thereby protect the public, negligently permitted such excavations to be made, and failed to see that the public was protected in the matter of such excavations so that its water mains would not be injured or destroyed, and thereby cause the danger of the destruction of property by fires. That the defendant, New Mexico Construction Company, by the terms of said contract agreed to be responsible for the loss of property by its negligence in performing the terms of said contract."

The record discloses that plaintiff's stated cause of action was based upon the theory that the city was liable for the consequences of the breakdown of its water system because its street department had violated the statute referred to in the complaint making it unlawful for the city to permit nuisances to be created in its streets and therefore guilty of negligence per se. There is nothing in the evidence to show any negligence otherwise. He sought to hold the servant liable because in its contract of employment it had "agreed to be responsible for the loss of property by its negligence in performing the terms of said contract."

When the city answered it alleged by way of defense that the construction company was an independent contractor, and that the city was not liable for its negligence. Plaintiff's reply denied this. Plaintiff now argues that the construction company was an independent contractor. If the trial court rendered its decision upon the theory that the construction company was an independent contractor, he went outside the issues made by the pleadings.

Appellant is entitled to a reversal unless the servant of a municipal corporation working under the direction and control thereof is liable notwithstanding the immunity of its master, the corporation.

From an annotation entitled "Personal liability of municipal officer or employee for negligence in performance of duty", 40 A.L.R. 1358, 53 A.L.R. 381, it appears that liability will not attach to the officer or employee even for misfeasance, except in the discharge of duties purely ministerial, and that if he is in the performance of public duties no liability will attach for the misfeasances because he is acting only as a representative of the government for the benefit of the public.

In Wood v. Boone County, 153 Iowa, 92, 133 N.W. 377, 39 L.R.A. (N.S.) 168, Ann. Cas. 1913d 1070, it was said that it would be an anomalous doctrine that would exempt a municipal corporation itself from liability for the doing of a lawful act in a negligent manner, on the ground of its compulsory agency on behalf of the public welfare, and at the same time affix liability upon the agent for precisely the same act done under express authority. The act there complained of was one of nonfeasance; the failure to furnish relief to a pauper.

If the defendant city of Roswell was exempt from liability for injury to a member of the public who suffered a hurt from its failure to furnish fire extinguishing service because rendition of such service is a public or governmental function, even though its servant (appellant) employed in another department in paving its streets, negligently participated in bringing about the condition which left unaltered, rendered it unready to render such service, how can it be said that the participating servant does not enjoy the same immunity?

Suppose appellant had by contract with the city been engaged in furnishing water to the city for fire protection and also engaged in paving the city streets, and, while doing the paving job, had broken one of its own water mains with the result that no water under pressure could be supplied for fire extinguishment service? Apparently such water company would also be exempt from liability to a householder who suffered a loss on account of failure of the company to supply water to extinguish the fire. Braden v. Water Supply Co., 18 N.M. 173, 135 P. 81, 82.

It does not seem that in the Braden Case, the question of whether the failure of the water company to furnish water was due to negligence or not made any material difference. It was said that "the contracting company is not chargeable with any greater liability than the city itself." In order for the agent or servant of the municipality engaged in a public work to be held liable for injury to a third person on account of his acts while performing his official duties, it must appear that he owed some duty to the injured person not owed to the public generally, and that the breach of such duty was an act of misfeasance or malfeasance and not merely one of nonfeasance, and the duty to the injured person must have existed at the time the act ofmisfeasance or malfeasance was committed.

In National Savings Bank v. Ward, 100 U.S. 195, 25 L. Ed. 621, it was decided that even the servant of a private individual not engaged in a public work in the absence of collusion or fraud, and where there was no privity of contract, could not be held liable to a stranger injured through his act unless the act is one immediately dangerous to the lives of others. This is in line with the dictum of Mr. Justice White in the Mott Case, that, "when no fire existed, and the hose was not in actual use at the time of the cutting," there would be no liability since the damage would be too remote. It seems anomalous that the defendant city of Roswell may be exempt from a liability in the case at bar although its servant, the appellant, created the condition complained of and under the supervision and direction and control of the city council through its city engineer, and yet the agent or servant be held liable for precisely the same act done under express authority. Of course, I do not mean that the city council expressly authorized its agent (appellant) to break the water main. But it knew as well as appellant the hazards of digging in the street with a heavy digging and excavating machine. It saw the machine working in such operations under its own direction for several months, with power to bring about the discharge of incompetent workmen, and no protest was made. The complaint contains many allegations of control and supervision by the city of the appellant's operations. It seems to me that our Legislature endeavored to bring order out of this confusion by the enactment of chapter 67, Sess. Laws 1905 (section 90-623, Comp. St. 1929): "No personal action shall be maintained in any court of this state against any member or officer of any municipal corporation in this state for any tort or act done, or attempted to be done, by such member or officer, when done by authority of such municipal corporation, or in execution of the orders thereof; in all such cases the municipal corporation shall alone be responsible; and any such member or officer may plead the provisions of this section in bar of such action whether the same be now pending or hereafter commenced."

This enactment was before this court in Baca v. City of Albuquerque, 19 N.M. 472, 145 P. 110, where it was held that such section does not relieve the member or officer of such corporation from liability for tortious acts done by him in the discharge of his official duties and cast such liability upon the city, "unless such tortious act is done by authority of such corporation, or in execution of its orders." I am not certain as to the scope of the holding in this case. The court illustrates as follows: "Suppose the city council should instruct the chief of police to tear down a building, or to close a ditch, and pursuant to such order he should do so. In such a case the statute says he shall not be individually liable for such act, but that the liability shall rest upon the city. The city authorizes the closing of a street, and under such authority the marshal proceeds to do so. The marshal would not be liable, as he acted under the authority of the city, but the city would be liable under the statute, if damages were recoverable. The statute does not undertake to change the common-law rule, except in those cases where the specific tortious act was done under direction of the city, or by its authority."

The statute properly construed would work justly. Take the case at bar as an illustration. Apparently it was held, first, that the city was negligent in failing to expeditiously repair the break in the main; second, that the pressure had to be reduced because the city had been negligent in allowing cut-off valves to become unworkable from rust and corrosion and lack of care; third, that the city water superintendent was negligent in refusing the request of the fire department to restore the pressure; fourth, that the city servant (appellant) employed in the street department caused the break in the main which created a condition of low pressure in the main at plaintiff's residence.

It is said by the lower court that the city is not liable, and such is the law of the case so far as the city is concerned. Under the court's holding, the servants of the city who had failed in any of the foregoing particulars might all be held to be concurrently liable.

It would be fair enough to hold them to be so, if a stranger to whom he or they owed a duty suffers an injury from the acts committed outside of the scope of the servant's authority. But if committed within the scope of authority while about his master's business and under the direction of the master, the liability, if any, ought to attach to the master alone. I think this is the effect of the statute. I believe that the statute would be as applicable where the mode of doing a work was "under direction of the city or by its authority" where it is the mode of doing the work which is said to be the cause of the injury.

If it may be said to be a rule that the servant of a municipal corporation is liable for his negligence while acting under the control of and direction of the corporation even when the corporation is immune, it seems that this statute is designed to change the rule. It is proper to say that this statute is not invoked by appellant, yet I think it reflects the law as disclosed by some courts independent of statute, and possibly reflects the theory upon which plaintiff sought to attach liability to the defendant city of Roswell.

The case ought to have been decided by the lower court, and reviewed here, upon the issues presented, alone.

The lower court was not warranted in viewing the appellant as an independent contractor, if such was his view. The plaintiff ought not to be allowed to shift his position here and be heard to argue that appellant was an independent contractor. Plaintiff, in an effort to fix liability upon the city for the acts of its servant, clearly disclaimed the idea that the appellant was an independent contractor, and sought to place liability upon such appellant upon the basis of its contract promise to pay, and to indemnify the city.

Coming now to the question of proximate cause. As I view it, the failure of the city to supply water under pressure to extinguish the fire which consumed plaintiff's property was the efficient proximate cause of plaintiff's injury.

Back of this is the question as to whether the act of the city's servant, the appellant, was the proximate cause of the failure of the city to furnish the water or was it the failure of the city to interrupt the primary cause which is the real and proximate cause of the failure of the water supply?

The majority seem to assume that the breaking of the water main by appellant was the primary cause of the failure of the water supply, and this cause was the continuing one, and was not interrupted by the city's negligence in failing to make repairs, because such negligence of the city was "passive" instead of "active." Herein largely our difference of view as to efficient proximate cause as an element in the case.

While the passive character of the negligence has been mentioned in some decisions, it has not been considered as making any difference. It is well to keep in mind the difference between intervening causes which are not wrongful and those which are wrongful. The following is a statement in Cooley on Torts (2d Ed.) at page 76: "If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury will be referred to the wrongful cause, passing by those which are innocent, if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury will be imputed to the last wrong as the proximate cause, and not to that which is more remote."

Here we have the appreciation of a learned writer that there is no difference in contemplation of law between wrongs of commission or of omission with respect to their being legal or efficient causes for injuries. Beginning at section 489 of the Corpus Juris article on Negligence, is a discussion of "Intervening Efficient Causes." At section 496 is a consideration of "Failure to Interrupt Primary Cause." The text is as follows: "The mere omission of a third party to interrupt the result of defendant's act will not amount to an intervening cause, even though such third person is a fellow servant of the person injured, neither of whom were servants of defendant. But where after the negligent act a duty devolves on another person in reference to such act or condition, which such person fails to perform, such failure is the proximate cause of the injury resulting from the act."

In Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 15 N.E. 84, 4 Am. St. Rep. 279, cited by Mr. Beals in "Selected Essays on the Law of Torts," post, the court held that the mere ownership of a house so constructed that its roof would throw snow into the street and therefore threatening danger as it is without more, whenever it shall fall, is not enough to impose liability whenthe control of it has been given up to a lessee, who, if he does his duty, will keep it safe. I find that this case is cited by courts in several of the decisions cited in Corpus Juris to the foregoing text. I might also observe that Shepard in his Annotations shows that this decision has been often cited and has not been modified or overruled. I give Professor Beal's comment immediately before and after employing a quotation from this decision at 729 "Selected Essays on Torts":

"Of course, it is not contended that the earlier of two `successive' wrongdoers would always be liable. On the contrary, in a large proportion of cases it would be found as matter of fact, and rightly found, that the earlier tort was not potentially operative at the time of committing the later tort (or, at all events, not so at the time of the damage) and that the later wrongdoer was the sole substantial human factor in bringing about the damaging result.

"`There is no doubt that a man sometimes may be liable in tort, notwithstanding the fact that the damage was attributable in part to the concurrent or subsequent intervening misconduct of a third person. * * * But the general tendency has been to look no further back than the last wrongdoer, especially when he has complete and intelligent control of the consequences of the earlier wrongful act.' Holmes, J., in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48, 49, 15 N.E. 84, 86, 87, 4 Am. St. Rep. 279 (1888).

"Moreover if the only fault sought to be imputed to the earlier conduct was that of negligence, it might be held that there was no negligence if it was improbable that the earlier conduct would tend to induce the commission of a subsequent tort."

In the cases supporting the text is to be noted the important factor of control of the object which may be potentially a cause of damage and of a condition which has been created by the primary wrongdoer.

It is very important to keep this in mind in the case at bar.

How can it be said that the wrongful act of the construction company is a continuing efficient cause of plaintiff's damage when the result of its act or the condition it created was not within its control so that it might break the continuation of a force or condition it had created so that it might not continue as a dangerous element of impulsion against a possible or probable on-coming force? The trial court found that the city took complete control of the repairs, and specifically that the construction company had no control thereof. The act of the construction company created a condition. This condition continued without its fault, but through the fault of the city.

I will refer to only a few of the cases cited to the Corpus Juris text.

Missouri, etc., R. Co. v. Merrill, 65 Kan. 436, 70 P. 358, 360, 59 L.R.A. 711, 93 Am. St. Rep. 287.

In the above-cited case, it was held that the railroad company which delivers a defective car to a connecting carrier is not liable for injuries sustained by an employer of the latter by reason of such defect after the receiving company has inspected the car and taken it in charge for transportation of its line. It was also held that the dereliction of the receiving company to make the inspection was the proximate cause of the hurt, and that the omission or negligent discharge of the duty of the receiving company breaks the causal connection between negligence of the company tendering the defective car and the plaintiff's injury, and that in such case the negligence of the company turning over the unsafe car is the remote cause of the plaintiff's injury.

"The failure to discharge the obligation to inspect interposes an independent agency, which severs the causal connection between the company first guilty of negligence and the hurt."

The court said: "Wharton, in his work on Negligence (§ 439), says: `There must be causal connection between the negligence and the hurt; and such causal connection is interrupted by the interposition between the negligence and the hurt of any independent human agency. Thus, a contractor is employed by a city to build a bridge in a workmanlike manner, and after he has finished his work, and it has been accepted by the city, a traveler is hurt when passing over it by a defect caused by the contractor's negligence. Now, the contractor may be liable on his contract to the city for his negligence, but he is not liable to the traveler in an action on the case for damages. The reason sometimes given to sustain such a conclusion is that otherwise there would be no end to suits. But a better ground is that there is no causal connection between the traveler's hurt and the contractor's negligence. The traveler reposed no confidence on the contractor, nor did the contractor accept any confidence from the traveler. The traveler, no doubt, reposed confidence on the city that it would have its bridges and highways in good order; but between the contractor and the traveler intervened the city, an independent responsible agent, breaking the causal connection.'"

This is one of the cases citing Clifford v. Atlantic Cotton Mills, supra.

In this case Chief Justice Doster concurred specially. He thought the failure of the receiving railroad company to inspect, or a careless inspection, was a simple failure to do a duty, an omission, not an affirmative act of wrongdoing, and further thought that the breaking of causal connection between a series of negligent acts could be accomplished only by the doing of something by somebody else which operates as a new and independent producing cause diverting the first negligent act from its nature and giving it a direction and force it did not otherwise have. He thought it not philosophical to speak of causal connection between act and consequence being broken by a mere failure, though a negligent one, of some person, not the original actor, to do something. He said: "Causal connection is broken only by the intervention of active agencies, not the occurrence of passive conditions and qualities."

I mention this as showing that the other eight justices of the Kansas Supreme Court were not impressed with the distinction Mr. Justice Doster endeavored to impress.

Goar v. Village of Stephen, 157 Minn. 228, 196 N.W. 171, 173, is a very important case, I think, in our consideration, and very persuasive because, while many cited in the text have applied the same principle to a variety of situations, this case is very much like the case at bar on the facts. It gathers up a number of propositions and answers them in a manner opposed to the prevailing opinion in the case at bar. It appears that the village of Stephen was engaged in the business of distributing electrical energy. The defendant, Minnesota Electrical Distributing Company, supplied to the city electrical energy at a certain point, and the city thereafter distributed it. There was a defect in construction at the point of delivery which became accentuated by the action of the elements. The city suffered this condition to run along for over a year, and upon an occasion the current from a high-voltage wire came in contact with a distributing wire and a customer was injured. There was a judgment in favor of the plaintiff against the city, and also against the defendant company. On appeal, the judgment against the city was affirmed and the judgment against the defendant electrical supply company was reversed. The Supreme Court said that they were impressed by the argument that it was a question of fact whether the company was negligent, and that they were not inclined to say that the jury held wrong when they held the company guilty of negligence. They then say: "It does not follow, however, that the Company is liable, even though it was negligent in the manner indicated. That initial negligence was followed by the serious and wrongful inaction of the Village. Before the verdict against the Company can be sustained, we must resolve against it the question as to whether the negligence of the village was a new agency severing causal connection between the Company's negligence and plaintiff's hurt; or whether, on the other hand, such negligence simply concurred with that of the Company so as to charge both defendants."

The court went on to say that the contractor had a right to rely upon the owner assuming immediately upon his acceptance of the work the duty of inspection and maintenance, which confessedly was not performed. So in the case at bar, the construction company had a right to assume that the city would repair the main, and what is more important, the city did assume the duty of repairing the main and negligently performed the duty.

The following emphasizes the idea of the importance of control in applying the principle: "Not only was the Village in exclusive control, and, in consequence, the only agency upon which rested the burden of inspection and maintenance, but the Company was deprived, upon its delivery of the plant to the Village, of the opportunity and means of protecting the property from deterioration, and itself from resulting liability."

The court then propounds the following inquiry:

"How serious and long continued must such obvious neglect be in order to become an independent cause of injury? Is there no limit of time beyond which a contractor will cease to be liable, with the owner, for an injury which could not have happened but for the negligence of the latter?

"If the Company is liable in this case, there is no rule of law which would prevent the same result were the accident to occur ten years later. If, in the one case, the company's negligence be a proximate cause, it must be so in the other. If in the one situation the negligence of the Village be not an independent producing agency of injury, it cannot be in the other. We are dealing with a question of negligence, and cannot hold a defendant liable as an insurer. Musolf v. Duluth Edison Electric Company, supra [108 Minn. 369, 122 N.W. 499, 24 L.R.A. (N.S.) 451].

"Our examination of the problem and the authorities, in the light of which it must be solved, leads us to the conclusion, and we so hold, as a matter of law, that, under the circumstances of this case, the negligence of the Village was an independent producing agency of such character, that it broke the causal connection between the negligence of the company and plaintiff's injury, and thereby became the proximate cause of the latter.

"In a lucid and most helpful memorandum, the learned trial judge has considered this question. He was of the opinion that it was an open one in this state, and proceeds to dispose of it in this manner:

"`If the negligence of the village had been active, I have no doubt it would have relieved the electric company from liability in this case, but, where the negligence of the village was failure to do anything, and natural causes brought the wires together causing the accident, I am of opinion the defendants should be held concurrently liable.'

"We do not reach the same conclusion because we differ with the view that wrongful omissions are of less effect in law, and attended by less serious consequences, than positive wrongdoing. Action, where legal duty requires no action, is no worse than inaction where legal duty requires action. There is no difference in law or morals between the effects attending the two. Negligence more frequently accompanies omission than commission; but whatever its cause, its legal consequences are the same.

"Here, if, by the affirmative voluntary act of the Village, the situation had been rendered dangerous (for example, by the removal of the insulation from the wires), there could be no question that such act would have been the proximate cause. The removal of the insulation and the resulting electric contact are just as clearly attributable to the independent agency of the Village, when its non-action is the immediate cause of the damage."

Another important thing about this decision is, that upon the facts presented in the record, the court held: "As a matter of law, * * * the negligence of the Village was an independent producing agency of such character, that it broke the causal connection between the negligence of the company and plaintiff's injury, and thereby became the proximate cause of the latter."

I think while it is sometimes said, properly, that what is proximate cause is a question of fact where the facts are in dispute, it is a question of law where the facts are not in dispute. There is dispute in the case at bar as to the exact time when the broken main was finally and completely repaired. But there is no dispute as to the material facts to determine proximate or remote cause any more in our case than there was in the Minnesota case. It is undisputed that the main was broken at 10 in the forenoon, the city promptly notified thereof, the city assumed the duty of repairs, the court found upon evidence which I will not review, that it could have been repaired by noon by reasonable diligence, and that it was negligent in not having so repaired it, but that the city negligently suffered it to remain in an unsafe and inadequate condition from noon until about 6. There is no dispute as to these facts, and upon them we should say as to the Minnesota court that as a matter of law, under the circumstances, the negligence of the city was the independent producing agency of such a character that it broke the causal connection between the negligence of the construction company and plaintiff's injury, and thereby it became the proximate cause of the latter.

In Selected Essays on the Law of Torts, it is said that Dr. Wharton is an especial advocate of what is known as the "Last (or Nearest) Wrongdoer Rule," which is, in substance, as follows:

"The legal cause is the last (or nearest) culpable human actor to be found in the chain of antecedents; i.e., the one acting last before, or nearest to, the happening of the damage to plaintiff.

"This rule is sometimes propounded, not as a supplement to the rule of liability for probable consequences; but as furnishing, per se, a complete and all-sufficient doctrine of legal cause.

"Taking this rule literally, the test under it would be to trace back the links in the chain of antecedents, until we come to a wrongful act of a responsible human being; to the last or nearest wrongful act of a free human agent. The person doing that act is the legal cause."

In the case at bar, if we begin at the time of the need of the service by plaintiff (6 p.m.) we trace back and we find the last or nearest wrongful act (or omission) of a free human agent to be the negligent omission of the city which the court found to be a culpable actor.

Under the rule favored by Dr. Wharton, we would not look further. But if we should look further, we would then inquire whether the primary actor should have anticipated the city's wrongdoing.

It is to be assumed that every one will do his duty. One of these duties is to use care that his acts will not injure another. This assumption extends to the city as well as to the construction company. If the plaintiff bases his cause of action upon the assumption (as it does) that the construction company and the city would each do its duty, there is no reason to deprive the construction company of the shield of the assumption that the city would do its duty, and especially that it would not become a wrongdoer as the court found it to be.

In Missouri Pac. Ry. Co. v. Columbia, 65 Kan. 390, 69 P. 338,340, 58 L.R.A. 399, the court said: "While one is responsible for such consequences of his fault as are natural and probable, and might, therefore, be foreseen by ordinary forecast, if his fault happened to concur with something extraordinary, and therefore not likely to be foreseen, he will not be answerable for the extraordinary result."

The court found that it took the city eight hours to do a 2-hour job. It must have been upon this that the court based the finding and conclusion that the city was negligent. In other words, the court would not have found the city negligent if its conduct was ordinary under the circumstances. It was because it was extraordinary that the court found it negligent. If, as the court found, the wrongful omission of the city was extraordinary, it was not a thing we can say was likely to be foreseen by the construction company.

From all of the foregoing, I conclude that the majority propose a decision which is unsound, and therefore I dissent.