Borough of Susquehanna Depot v. Simmons , 112 Pa. 384 ( 1886 )

Mr. Justice Gordon

delivered the opinion of the court, April 12th, 1886.

The question before us is, who is responsible for the injury which befell Sarah Ann Simmons, in consequence of her fall into the ditch dug in Willow street of the borough of Susquehanna Depot, by Jonas Florence? In the case of Smith v. Simmons, 7 Out., 33, we held that the only person responsible for this-accident was this Jonas Florence who made the aforesaid excavation. The license authorizing it was for a purpose proper and lawful, hence the blame must attach to the person who misused or abused that license, and not to the borough. In the case cited it was determined that an action for the damages thus, sustained would not lie against Dr. Smith, the licensee of the borough, because in the exercise of a lawful right, he had contracted with Florence to execute the entire job, and as, after the conclusion of such a contract, he had no supervision or control over the manner in which the worb should be executed, so he was not responsible for the contractor’s negligence. Now, why the borough should be liable we cannot well understand. It is true, the municipality has charge over its streets, and must beep them in proper repair ; it is bound to see that there is no obstructions therein, and is responsible for accidents that may happen.from the neglect of the duties thus imposed upon it by law. But to this general rule there are exceptions that are universally recognized. For the purpose of constructing sewers, or laying water or gas .pipes, the municipality may dig up and obstruct its own streets without committing a nuisance, though these highways may be thereby altogether obstructed, business impeded, and' the citizens injured. In libe manner all that is here mentioned may be done by an independent corporation over which the borough or city, as the case may be, has no control. It is therefore to no purpose to cite authorities which illustrate only the general rule, and have no bearing whatever; upon the well recognized exceptions.

It is settled that the defendant .had the right to grant the license to dig the ditch complained of; in this it did nothing unlawful. How then, is it responsible for the negligent act of Florence ?, It certainly cannot be contended that its responsibility would be greater in a case such as this, than if Florence had been acting under a contract with the borough instead of Dr. Smith. Yet under such a contract it would not have been liable. His .employment was independent of the control and direction of the person with whom he had contracted. He was in the lawful possession of the street in which the water pipes were to be laid, and, as was said in The City of Erie v. Caulkins, 4 Norris, 247, the borough could not fill up the trench which he dug, or erect barriers which he might not tear down if they obstructed his work. The authorities supporting the principle here stated are many,' and when we refer to Painter v. The Mayor, 10 Wr., 213; Hunt v. The Pennsylvania R. R. Co., 1 P. F. S., 475; Allen v. Willard, 7 Id., 374, and Reid v. The City, 29 Id., 300, we have by no means exhausted the list. The counsel for the defendants in error lay much stress upon the case of The City of Allegheny v. Campbell, 11 Out., 535, and profess to think that it rules the contention in hand. It does nothing of the kind, and it is wide of the point in controversy. In that case the plaintiff occupied the place of lessee of the defendant inasmuch as he paid the city wharfage for the use of the landing, and the city was bound to keep it in proper repair. In this the position of the parties was that of landlord and tenant under a lease containing a covenant on part of the former to keep the premises in repair, in which ease the landlord would, of course, be liable to the tenant for damages resulting from a breach of such covenant. The like remarks fit the ease of Pittsburgh v. Grier, 10 Harris, 54. So, a like reasoning may be applied to distinguish the ease in hand from that of Born v. The Plank Road Co., 12 W. N. C., 283, for there the corporation collected tolls for the use of its road, hence, it was rigidly held to such an oversight of its way as to guard travellers from obstructions of every kind, whether occasioned by its own act or that of a stranger.

If, as was said in Smith v. Simmons, the excavation had been per se a nuisance, the case would be different, for in that event the public authorities would have been bound to abate it as soon as they had knowledge of the obstruction, but not being a nuisance, but lawful, the borough cannot be held for an accident happening thereby, and Florence alone must be regarded as responsible for the injury resulting to the plaintiff from his neglect. He, doubtless, would have been pursued in the first instance but for his alleged insolvency, nevertheless, it does not follow that for this reason the borough must foot the bill, otherwise it must become the guarantor of the solvency of every contractor who may work on its streets. We conclude, then, in view of the evidence as we have it before us, that the court should have answered the defendant’s seventh point in the affirmative without qualification, and thus have peremptorily directed the jury to find a verdict for the defendant. We discover no error in the various rulings of the court with reference to the admission and rejection of evidence, nor are we prepared to say that there is anything wrong in the court’s instruction on the question of damages, but for the error above mentioned we must reverse the case.

The judgment is reversed, and a new venire ordered.

A like judgment of reversal, with order for a new venire will be entered in the case of the borough of Susquehanna Depot v. O. H. Simmons.