Geist v. Rothschild & Co. , 1900 Ill. App. LEXIS 146 ( 1900 )

Mr. Justice Windes

delivered the opinion of the court.

Plaintiff in error brought suit to recover for damages to her resulting from the falling of a coil of rope from a painter’s scaffold suspended above the State street entrance at about the third story of defendant in error’s department store at the corner of Van Burén and State streets, Chicago. At the close of the plaintiff’s evidence the defendant moved the court to instruct a verdict of nob guilt}', which motion ivas overruled, but at the close of all the evidence the motion was renewed and the court instructed the jury to find the defendant not guilty, and the jury so found, on which verdict judgment was rendered, to reverse which this writ of error is prosecuted by the plaintiff.

The evidence shows that defendant made a contract with William Goldie & Sons Co., a corporation, to do certain carpentry and painting work upon its department store building, necessary in certain alterations on the building which defendant desired to make, the contractor to furnish all labor and materials and provide all necessary scaffolding and implements necessary therefor, and to permit the architect or representatives of defendant to inspect the work during the progress of the same, and to finish the work on or before April 3, 1896, provided possession of the premises should be given the contractor on or before March 6, 1S96, the contractor to have permission to sub-let without releasing its liability.

The contractor sub-let the painting part of the contract to Nelson & Co., whose reputation is good for competency, skillfulness and business ability, but after the contract was sub-let the contractor had no supervision over the painting, which was done under the general supervision of an architect selected by defendant, though it in no way controlled nor directed the men doing the painting, nor the manner of doing it, nor directed the appliances to be used.

At the time -of the injury to plaintiff the employes of Nelson & Co. were at work upon a painter’s scaffold suspended upon the State street front of the building at about the third or fourth story by hooks at the top of the building, to which were attached ropes about 1J to l-J inches in diameter, fastened to the ends of the scaffold, and of sufficient length to -reach to the sidewalk below and somewhat longer. By these ropes the scaffold was raised or lowered along the wall of the building to any point where it was desired to paint, and at the time of the accident the slack ends of the rope were coiled up on the scaffold. Also, at the time of the accident, defendant had some electricians at work on the roof of the building, but near its center— nowhere near the State street front. No one, at the time of the accident, was employed upon the outside of the building, its State street wall, except the men of Nelson & Co., who were engaged in painting this front. Nelson & Co. had the exclusive control of the outside wall of the building where the painting was being done, and the only supervision of defendant over the painting work was to inspect it, through the architect, to see that it was done according to contract, and by its employe, a Mr. Phillips, who said it was his duty to inspect the work after it was finished.

The plaintiff, on March 28, 1896, while on her way from her work, came along Van Burén street going east, and was proceeding toward the State street entrance of defendant’s store, near the corner of Van Burén and State streets, with the intention of going into the store to purchase a pair of gloves, and when within two or three feet of the store entrance, one of the slack ends of rope which suspended the painter’s scaffold, and which had been coiled up thereon, fell therefrom and struck her, causing 1 very serious injuries, as the evidence tends to show. At this time defendant was transacting business in its store regularly. The doors of the store were open and people were coming and going in and out of the store at this entrance.

The question presented for decision is as to whether the defendant is relieved from liability by reason of having let the work of painting the walls of its building to an independent contractor.

It is not contended by counsel for defendant in error, but that there was sufficient evidence presented by plaintiff in support of her case to justify its submission to the jury, had it not been for the evidence produced on its behalf showing that the work in the repairs and alterations of its building was let to Goldie & Sons Co., an independent contractor, and by the latter sub-let to Nelson & Co., who actually did the work, and who were admitted to be competent contractors.

It is conceded by counsel for plaintiff in error to be the general rule that the law of respondeat superior does not apply in a case where work is submitted bjr an employer to an independent contractor, but they say that this case comes within a clearly defined exception to that rule, viz.: that where the employer “ is under a primary obligation, imposed bylaw or by contract, to the party injured, he can not shift the obligation thus incurred to an independent contractor,” and cite a number of authorities which they claim sustain this contention.

An examination of the authorities cited by counsel fails to show, in our opinion, an exception to the general rule conceded by counsel, applicable to the facts of the case at bar. The exception to the general rule shown by these authorities is that a shopkeeper is liable to his customers coming by invitation upon his premises, because of an implied contract with them that he would use reasonable care to avoid harm or damage to them. An exception also applies in the case of an owner or occupier of premises to persons who come thereon by his invitation; also to the case of á master whose servant is injured by reason of some defective passageway, obstruction, or dangerous place, upon his premises; also to the case of a landlord undertaking to make repairs on his building, and a tenant, or his goods upon the premises, is injured by the negligence of the landlord’s contractor. But in every case cited by counsel, except those hereinafter specially referred to; it appears that the injury caused was upon the premises of the parties sought to be charged, or in some passageway or approach thereto forming a part of the premises. These cases are, therefore, in our opinion, not applicable to the case at -bar, because here the plaintiff when injured was upon the public sidewalk, not nearer than two or three feet of the defendant’s premises, and there was no duty or obligation on its part to her beyond the duty or obligation, if any, which the defendant owed to any passer-by upon the sidewalk.

The excepted cases cited by counsel, are Virginia C. R. R. Co. v. Sanger, 15 Gratt. 230, and Moore v. Townsend, 78 N. W. Rep. 880. We deem it unnecessary to review at length either of these cases as, in our opinion, they are not applicable to the case at bar. In the Sanger case the question discussed was the liability of a railway company to its passenger who was injured while riding upon the railway train by the negligence of a contractor in placing an obstruction so near the tracks as to cause the injury in question. The court held that the company was liable, and, among other things, says (p. 242):

“ The duties which the carrier of passengers owes to his passengers, and the duties which he owes to other persons, between whom and himself the relation of carrier and passenger does not exist, are essentially distinct.”

The decision seems to be placed especially upon the relation of passenger and carrier, and it is held that the case of a stranger would be on a very different footing.

The Moore case, supra, is more nearly in point, where the injury occurred by the negligence of a contractor in leaving a long ladder resting against the wall of defendant’s building, the lower end resting in the gutter outside the walk, and allowing it to remain in this position thirteen days after his work was completed. It appears that the owner of the building, without surrendering its control to the contractor, permitted him. as the court say, “to create a nuisance in the public street,” by allowing the contractor to put the ladder in such a position over the walk, where it was a continual menace to ail persons within its reach if it fell. This case is quite different from the one at bar, because there is no evidence that the contractor here created a nuisance in the public street. On the contrary, it is a matter of constant and almost daily occurrence in a large city like Chicago for the walls of buildings along its streets to be painted, and the fact that it is necessary to suspend scaffolds over the sidewalks in order to do the painting does not create a nuisance, if they are securely suspended, as was the case here. There is nothing inherently dangerous in doing such work, provided it is done by competent persons in the usual and ordinary way, and there was no question of fact for submission to the jury in this regard.

Ho case has been cited by counsel, nor have we been able to find any authority which holds that there is such a primary duty or obligation upon the owner of a building to persons passing along on an adjoining public sidewalk, or to prospective customers who are going toward his premises where he conducts a public business, that he is liable in damages for the negligence of an independent contractor to such persons, when the injury occurs while they are going along such public sidewalk, or to such customers before they actually come upon the premises where he is conducting his business, or into some passageway or entrance-way used as a part of the owner’s premises.

In the case of Scammon v. The City of Chicago, 25 Ill. 438, it was held that owners who had employed competent and skillful contractors to erect a building for them, retaining no control over the manner of doing the work, and giving no directions as to the details thereof, were not liable for the negligence of such contractors in leaving an open area extending into the sidewalk, into which a passer-by fell and was injured. Vv e are of opinion that the principles established by that case are applicable here, and are decisive against the contention of plaintiffs in error, that the facts constitute an exception to the general rule as to non-liability of an owner where he has work done by an independent contractor.

We are of opinion there is no sufficient reason shown here to extend such liability beyond the adjudicated cases.

It is claimed by counsel for plaintiff that the owner is only relieved from liability for the negligence of his contractor whom he employs to perform work upon his premises by an independent contract, "when the entire and exclusive control of the premises is surrendered to such contractor. We can not give our assent to this contention, as in our opinion, it is not sustained by authority to the extent claimed.

It is true that the language of the courts in some of the cases seems to contemplate exclusive possession of the contractor of the premises where he is doing work for the owner. Scammon v. Chicago, 25 Ill. 438; Pfau v. Williamson, 63 Ill. 18; Jefferson v. Jamieson & M. Co., 165 Ill. 142.

But when the question is squarely before the court, it has been held that it is sufficient to relieve the owner so far as concerns the' matter of possession, wffien the contractor is in possession of that part of the premises upon which” the work is to be done, with an exclusive control of the work. Kepperly v. Ramsden. 83 Ill. 354; City of Moline v. McKinnie, 30 Ill. App. 422; Mohr v. McKenzie., 60 Ill. App. 578; Pioneer Constn. Co. v. Hansen, 176 Ill. 100-110.

In the case at bar, as we have seen, Kelson & Co. had complete control of the wall of the defendant’s building at the place where they were doing the work, directing the men and the manner of doing the work, as well as of the appliances that were used, and it therefore should be controlled by the authority of the Kepperly and Mohr cases, sujpra, which we consider directly in point.

The fact that the work was to be inspected by the architect to see that it was done according to the contract, does not make the defendant liable. Hansen, McKinney and Pfau cases, sufra.

It seems to us unnecessary to consider other exceptions to the general rule, as applied to an independent contractor, as it is not contended that any others of them apply to the facts of this case.

Being of opinion that there was no question of fact, upon a consideration of the whole evidence, which should have been submitted to the jury, the judgment of the Circuit Court is affirmed.