Smith v. Simmons , 103 Pa. 32 ( 1883 )

Mr. Jnstice Gordon

delivered the opinion of the court,

This case presents two main questions for our consideration and resolution, and these being determined, all others raised by the assignments may be passed as of minor consequence. Was the digging of the ditch in the public street of the borough of Susquehanna a nuisance perse? If not, if it was such a necessary work as was properly licensable by the borough council, then, as the second question, was the defendant chargeable with the negligence of his contractor who had charge of the work ? It is certainly true, that if the premise assumed by the court below be correct, the conclusion adopted by it follows as a matter of course. If the ditch dug for and at the instance of Dr. Smith was a public nuisance, then he and all engaged in sinking it were responsible for all damages resulting from it, and the doctrine of respondeat superior is out of the case. But we do not think it was per se a nuisance; such a work that the borough council had no power to permit. This ditch was dug for the purpose of laying a pipe for the conveyance of water from a spring to one of the defendant’s houses on Willow street. Water is one of those prime necessaries without which people cannot live, and the public streets of towns and cities have, from time immemorial, been used as a means for its production or conveyance. Formerly it was very common for the citizens of the various municipalities to sink wells for this purpose on the public thoroughfares, and this, as was said by Chief J ustice Gibson, in Barter v. Commonwealth, 3 P. & W. 253, was by sufferance, and in subjection to the corporate franchise. In these days, when water-works are common to all the larger towns, pipes are laid in the streets from which the water supply is drawn both for public and private uses, and although the right thus to lay pipes is usually accorded to a corporation, it by no means follows that it might not be done by private persons acting under municipal authority. Necessity, as was held in the case of the Commonwealth v. Passmore, 1 S. & R. 217, justifies many actions which would otherwise be nuisances. No one has the right to throw wood or stones in the street at his pleasure, nevertheless, as building is necessary, building materials may be laid therein for a reasonable time, and in a convenient manner. So may a merchant occupy the street with his goods ; in like manner may the common highways be temporarily opened for the purpose of building vaults under them, or, under like regulations, private drains may be connected with the common sewers or gutters, or houses and other buildings with the streets, by-alleys, door-steps, and the like. By such things as these, and many others, which are justified by necessity or custom, may public highways be occupied temporarily or permanently, and it would be strange, indeed, if, in the face of all this array of precedents, a private citizen, acting under municipal license, could not, without committing a public nuisance, lay a water-pipe along a street to his house. Such strictness as this would, in some of our county villages, deprive the inhabitants of their water supply altogether, and would, in many other instances, seriously interfere with the business and comfort of our people.

From considerations of this kind we are compelled to dissent from the ruling of the court below on this question of nuisance, and to hold, on the contrary, that the digging of the trench, complained of in this case, under the license of the borough council, was not such an act as of itself rendered the parties engaged in it guilty of a public wrong.

Having arrived at this conclusion, the question that next presents itself is that involving the responsibility of the defendant. If, however, the testimony of Jonas Florence, the contractor, is to be believed, Dr. Smith was not his responsible superior. Florence undertook the whole job for the compensation of $25, and the defendant had nothing to do exceptfurnish the pipe and the box in which it was to be enclosed. With Florence, in the execution of this contract, he could no more interfere than he could'about a job in which he had no interest. He might advise, but the contractor could receive or reject that advice as he saw fit; he might put a fence around the ditch whilst in process of construction, and Florence might treat it as an obstruction and remove it. In other words, Dr. Smith could not control the execution of the contract. Pie was entitled to a finished job, but it was not his business to see to, or regulate, the manner of its doing. The case is evidently governed by Harrison v. Collins, 5 Nor. 153, wherein it is said, by Mr. Justice Mercur : “ If one renders service, in the course of an occupation, representing the will of the employer only as to the result of the work, and not as to the means by which it is accomplished, it is an independent employment.” Rut certainly, in the case under consideration, Florence was the subordinate of the defendant in nothing but the design, whilst in everything which pertained to the execution of the work he was the chief and only director and executor, and it hence follows that for his negligence the court ought not to have held the defendant responsible.

We therefore think, without particularizing as to the assignments of error, the court should have instructed the jury, that if they believed the uncontradicted evidence on part of the defendant, as to the character of liis contract with Florence, the plaintiffs were not entitled to their verdict.

The judgment of the court below is reversed, and a new venire awarded.

Trunkey, J., dissented.