Chartiers V. Gas Co. v. Waters , 123 Pa. 220 ( 1889 )

Opinion,

Me. Justicie Hand :

This was am action for negligence alleged against the defendants while their pipes were being laid, in not protecting the gas pipes of another company, whereby an explosion took placé wliicli burned and injured the plaintiff’s goods in his store.

The defence set up was, that the whole work was contracted to one Joyce, and the injury was caused by his negligence. The material facts of the case are the same as in the case of the same Company v. Lynch, 118 Pa. 362. It is not necessary to repeat them here. The contract as there stated clearly ■established the relation which in the ordinary cases relieves the principal from liability and places it upon the contractor. An effort is made to distinguish the law of this case from the admitted principles recognized in Gas Company v. Lynch, upon the ground that a statutory obligation was laid upon the ■defendants, from which they could not be relieved by committing the execution of the work to a contractor. The merits of this controversy are covered by the first assignment of error. It is as follows:

“If the jury should find from the evidence that the digging of the trench, laying of the pipes, filling the trench, etc., was done by Martin Joyce, under the contract in evidence, between the said Joyce and the Chartiers Valley Gas Company, and the injury was caused by the negligence of Joyce in doing said work, and before it had been accepted and taken off Joyce’s hands by said company, Joyce would be the one most liable to plaintiff, and the verdict in this case should be for the defendants, the Chartiers Valley Gas Company.”

“ Answer: The point submitted by counsel for the Chartiers Valley Gas Company is refused except as affirmed in the general charge. There is evidence from which the jury may fairly find that the accident occurred by reason of the breaking of the service pipe of the Philadelphia Company, and that the breaking of this pipe was caused by the taking away the proper support of said pipe by the digging of a trench and laying of the large main of the Chartiers Valley Gas Company, and failure to renew the support. When the Chartiers company undertook to lay its main along Penn street in the city of Pittsburgh, under the act of assembly and the city ordinance, and contracted for the laying thereof, it owed to the Philadelphia Company, which had already had its pipes there, and to the property holders and to the public a duty of supporting such pipes. This duty was a positive obligation of which they could not get rid by giving a contract to a third party to do the work. If the pipe broken was necessarily undermined and its support taken away by the laying of the Chartiers company’s main, as contemplated in the contract with Martin Joyce, and it was not supported by that company, or its agent or contractor, but left without .reasonable, or proper support from an ordinary pressure from above and thereby it was broken, so as to cause the gas to escape, and thereby cause the accident, the Chartiers company cannot escape the consequence of the neglect of its obligation by showing that they had contracted with another to perform the duty. The act of assembly provides that ‘ any company laying a pipe-line under the provisions of the act shall be liable for all damages occasioned by reason of the negligence of said company.’ There is also evidence from which the jury may fairly find, in fact it is the uncontradicted testimony, that the Chartiers company’s main had been fully laid and completed for a considerable time past the place complained of, and the trench filled up and the pavement relaid, and, also, that the superintendent of the company had full notice and actual knowledge of the faulty manner in which its contractor was performing the duty of securing the pipes of other companies.”

The facts of this case upon an examination show that by a distinct and written contract Joyce was an independent contractor ; that he was expressly required to brace and protect all water and other pipes; that by his neglect one of the pipes of the Philadelphia Company not being sufficiently braced or protected by tamping broke off, discharged its gas, and an explosion resulted which caused the damage. There are no facts proved to take the case out of the rule which relieves the defendant company. The latter part of the answer of the learned judge which relates to an implied acceptance of the work from the contractor, and full notice of the faulty manner in which the contractor performed his work, is not sustained by the evidence, and the proper disposition of the case rests upon the first paragraph of the answer to the defendant’s first point. If there had been an acceptance of the work and proof of notice, the case would be different.

The remaining question is one of a statutory obligation. We answer this somewhat at length. It is admitted that the accident occurred, by reason of the breaking of the service pipe of the Philadelphia Company, because of insufficient support caused by Joyce, the contractor. It is, however, urged that under the act of 'assembly and the city ordinance the defendant owed to the Philadelphia Company, and the property holders and the public, a duty of supporting such pipes, and hence the Chartiers company is liable. We have seen that so far as the immediate facts of this case are concerned, as between the company and the contractor, the former is not liable. Is she liable under the principle that an express statutory obligation is inferred from which she cannot be relieved? We can discover no such clause in the act of assembly referred to. The only sentence referred to is where the act provides that “ any company laying a pipe-line under the provisions of the act shall be liable for all damages occasioned by reason of the negligence of said company.” Certainly no duty is imposed by this language; no express or definite obligation is laid upon the company as regards what work she shall do or how she shall do it. It is not necessary to determine in this case whether the English rule of liability has been or should be adopted by our courts. It will be seen that this case does not come within the principles of the English cases which the learned judge below; undoubtedly had in his mind, and are referred to by the learned counsel for the defendant in error.

The principle is stated in Smith on Negligence, 88: “ Where an obligation is imposed by statute upon a person he cannot escape from it by employing a contractor.” The case of Gray v. Pullen, 5 B. & S. 970, is cited as authority for the principle, and in his treatise the author condenses the case properly by saying: “ Where a statute ordered the owner of land to make a drain and to refill it with earth, and the owner employed a contractor who neglected properly to refill the drain, it was held that the owner was liable.”- The case shows that there was an express and fully defined statutory duty absolutely imposed upon the owner of the premises, and how he was to perform it, and the time when, and it was properly held that he could not delegate fit or shift this responsibility by employing a contractor. The judgment of the court clearly puts the case upon the fact of a statutory duty absolutely created. There is in this case no ordinance of the city shown which creates such a duty. The learned judge seems to think that because the pipe of the Philadelphia Company was necessarily undermined and therefore contemplated by the contract, it changes the rule, because it is a necessary interference with the rights of others. The answer is, there is no necessary interference with the rights of others unless negligence exists. Both companies had their rights, and they are perfectly consistent with each other. If the company itself was guilty of negligence she would he liable for consequent injury to another’s rights; if the contractor alone is guilty, he alone is liable.

The view of the learned judge would introduce an additional refinement into this branch of the law, the necessity of which is not apparent upon the facts of this ease.

We are of the opinion that the point of the defendant should have been affirmed without qualification. Inasmuch as the error committed runs through the other assignments of error is is unnecessary for us to refer to them specifically. No negligence was proved against defendant.

The judgment in this case is reversed.