James v. City of San Francisco , 6 Cal. 528 ( 1856 )

Mr. Justice Terry delivered the opinion of the Court.

Mr. Chief Justice Murray concurred.

The obligation of a municipal corporation to keep the streets in repair is necessarily suspended while they are actually undergoing such alterations as, for the time, render them impassable or dangerous.

At the time of the injury complained of, the street was being graded by one Babcock, under a contract with defendant, and the character of the work necessarily rendered said street unfit for a public thoroughfare, and this fact was a matter of general notoriety.

It is said that the contract of Babcock only related to the carriage way of the street, extending from one sidewalk to the other, and that the obligation of the city to keep the sidewalk in repair was not suspended because repairs or alterations were being made in the carriage way.

The Common Council, by ordinance, required the owners of property along the line of improvement, to grade the sidewalks, and the alteration of the whole street was progressing at the same time. The defendant had no control over the workmen employed, and, as the law requires all such contracts to be given out to the lowest bidder, could not even select the contractor.

It is a well settled rule that “ Whenever a person is absolutely compellable, by law, to employ a particular individual in a given matter, the law which compels him to employ that individual, takes away his responsibility arising from the acts of that individual. Story on Agency, § 456.

For any injuries, arising from negligence in the manner of conducting the work, we are of opinion that the liability rests upon the contractors, and not upon the city. Reedy v. London and N. W. Railway, 4 Welsby H. and G. Exchequer R., 243.

Judgment reversed.