Norwalk Gaslight Co. v. Borough of Norwalk

The plaintiff's complaint, as amended, contains three counts. In the first it is alleged, in the first paragraph, that the plaintiff was in 1856 granted a charter of incorporation, empowering it to manufacture and sell gas in the town and borough of Norwalk, for lighting the streets and other purposes, and to lay down its gas pipes and appurtenances in the streets of said town or borough; and that under its charter it did lay such pipes in such streets, and has ever since maintained them there, and conducted the business for which it was chartered. In the second paragraph it is stated that about July 6th, 1887, the defendant borough began the construction of a general sewer system for the borough, in the streets of the borough, wherein lay the plaintiff's pipes, and substantially completed said construction about November, 1888. The third and fourth paragraphs of the count contain averments of the defendant's negligence in the performance of said work, in the excavation of earth, blasting of rocks, and tilling of trenches; and damage to the plaintiff by the needless breaking and injury of its pipes, and the escape of gas therein contained, and in the storage tanks, resulting therefrom; and expense in repairing, restoring and re-laying pipes and in superintending its lines during the defendant's work of construction, thereby caused. The second count is similar to the first, except that in the second paragraph it is averred that: — "It suited the convenience of the defendant in constructing said sewer system to excavate the streets of said borough in excessively wide trenches, and keep the same open unusual and unnecessary lengths of time, and in such excavating in many places the defendant blasted out wide trenches through ledges of rock, using therefor dynamite and other high explosives, which blasting is an operation inherently dangerous and destructive to property, and demands of those engaged in it a high degree of care, skill and prudence duly to protect the property rights of others." In the third count, paragraphs one and two of the first count are adopted, and it is then averred that: — "When constructing said sewers the defendant, in consideration that the plaintiff would employ sufficient men and provide materials to secure the plaintiff's mains and pipes from injury which might result from the defendant's operations, and would repair said mains and pipes when broken or injured thereby, which injuries the defendant could and should provide against by exercising reasonable care in its said operations, agreed with the plaintiff, on demand, for a valuable consideration, to reimburse the plaintiff for all expense it might incur and labor it might expend for the proper security of its mains and pipes, and for the repair and restoration of the same when injured by the defendant as aforesaid; and that, pursuant to said agreement, the plaintiff performed work, incurred expense, and made disbursements to the amount of $1,000.85, all of which was made necessary by the defendant's operations aforesaid." An itemized bill of particulars under this count was also filed.

To the defense of denial to all the counts the defendant added a second defense to the first and second counts respectively, which contained the following allegations: — That public convenience and necessity required the construction of said sewers, and that they were constructed under and by virtue of authority given to the defendant by the State; that when such construction was commenced neither the defendant nor any of its officers or agents knew or were able to ascertain the location of the gas pipes of the plaintiff, and were therefore unable to so locate and construct said sewers as to avoid the said gas pipes, and locate and construct said sewers where said gas pipes were not located; that it was necessary to locate and construct said sewers where they were located and constructed, and to construct them in the way and manner in which they were constructed; that the plaintiff knew the location of said sewers and where they were to be constructed before such construction was commenced, and made no objection to such location or construction; that the plaintiff might and should have taken up said gas pipes and removed them to such places in said streets as were not used by the defendant in the construction of said sewers, and where they would not have been injured; yet that the plaintiff neglected so to do, though thereto requested; that all the work done in the construction of said sewers "was done by contractors, who were acting under contracts which the defendant by its proper officers had before that time entered into under the advice of competent counsel, and the acts complained of by the plaintiff, if done, were done by said contractors, and not by or under the direction or procurement of the defendant;" and that the defendant, in all it did in the location and construction of said sewers, acted by its proper officers, in the discharge of a duty to and for the benefit of the public, and that its acts were necessary, and were done with reasonable care and without negligence on its part.

To these defenses, which were alike, the plaintiff demurred, on the ground, in substance, that none of these matters alleged constituted any defense or exempted the defendant from liability for negligence in the construction of the work, such negligence being, as claimed by the plaintiff, the gist of its action. But the court overruled the demurrers and thereupon the plaintiff answered over, alleging in its reply that the contractors engaged by the defendant to construct its sewers were at all times under the immediate direction of the defendant, particularly as to the manner of doing the work: that said contractors were engaged in behalf of the defendant to take care of the plaintiff's gas pipes and preserve them from the injuries complained of, and that the acts complained of were done by the defendant, and under its direction and procurement, and were in law its acts. To this reply there was a rejoinder, in which it was admitted that the contractors employed by the defendant were under its direction, so far as to insure the performance by them of the work on said sewers, according to the requirements of the contracts, and no further.

The case was tried to the jury and resulted in a verdict for the defendant. The plaintiff in its appeal assigns twenty-four reasons, which may, however, be considered under three heads: first, the alleged errors in overruling the demurrers to the second or special defenses to the first and second counts of the complaint; second, in excluding the evidence which was offered by the plaintiff in support of the third count of the complaint; third, in the charge of the court to the jury.

In reference to the first head we are inclined to think that the court erred. The defenses on their face purport to be, and to have been filed as, full defenses to the first and second counts respectively. In our judgment they are not such. It will be seen, by reference to the first count of the complaint, that the gravamen of the grievance complained of is, as the plaintiff insists, the negligence of the defendant in the work of construction. The allegations of the answer of public convenience and necessity, of authority from the State, of want of knowledge of location of the plaintiff's pipes, of the discharge of a duty, the advice and superintendence of a skillful and competent engineer, and the like, however important some of these things may be as matters of evidence tending to show that no such negligence in fact existed, clearly constitute, severally or collectively, no excuse or justification for it if it did exist. The allegations that all acts done by the defendant "were necessary to be done, and were done with reasonable care and without negligence on the defendant's part," cannot serve to make a special defense, otherwise bad, of validity, since they constitute in effect a mere denial of allegations of the plaintiff's complaint and a mere repetition of the defense of denial already pleaded. And finally, as to the allegations above referred to, that "all the work done in the construction of said sewers was done by contractors, who were acting under contracts which the defendant by its proper officers had before that time entered into under the advice of competent counsel, and the acts complained of by the plaintiff, if done, were done by said contractors and not by or under the direction or procurement of the defendant" — this averment, if, as contended by the defendant, sufficient in itself to constitute a valid statement of a defense that the work in question was done by independent contractors, for whose acts the defendant was not liable, is certainly, if so understood, not only distinct from, but inconsistent with the other paragraphs of the answer in which it is placed. It ought rather as we think, if possible, to be construed in connection with the rest of the answer and as harmonizing with it, and, so understood, the allegations are of acts done by the defendant in making contracts under the advice of competent counsel, showing the exercise of reasonable care, and not of facts, the implied legal effect of which is to exempt the defendant from liability for the want of such care. Although this construction may not seem the most obvious, yet, since there is no direct averment that the contractors were independent, either of the actual control or of the right of control of the defendant, and as there is an averment in the next consecutive paragraph of the same answer that acts and things in the construction of these sewers were done by the defendant under the advice of a superintendent employed by it to superintend the construction of the sewers, it is. as we think, all things considered, the most reasonable and fair construction to be made. And as so construed, the demurrer to this paragraph, as insufficient to exempt the defendant from liability for injury occurring by reason of the negligence of such contractors, was well taken.

It may be added that the plaintiff, in its demurrer to the second defense, as applied to the second count of the complaint, assigned the following additional reason of demurrer* — "Because no contract or covenant between the defendant and any independent contractor, not the plaintiff, can relieve the defendant of the liability for injuries done the plaintiff by such contractor, by his negligence in the inherently dangerous operation of rock blasting with dynamite, as alleged in the second count of this complaint;" thereby presenting another question, which, as it will also arise and call for consideration in connection with the charge of the court, we will not now examine. Indeed it is apparent from the record that the case was tried to the jury precisely as it would have been had the plaintiff not demurred, and the same questions of law arose upon the trial and were passed upon by the court in its charge to the jury, as were raised by demurrer. It is therefore appropriate, and has seemed to us best, to review these questions principally in connection with the consideration of such charge.

Before doing this, however, we will examine the question based upon the action of the court in excluding evidence offered by the plaintiff in support of the third count of the complaint. As bearing upon this subject, the finding states that upon the trial the plaintiff first offer d evidence to prove, and claimed to have proved, that the defendant petitioned for and obtained from the legislature of this State, authority to construct a general sewer system for the whole borough, which enactment was accepted by the borough in due and legal manner; that after such acceptance, (and this was conceded,) the borough passed votes providing that the cost of the system should be borne by the borough at large and not by assessment of benefits, and directing the court of burgesses to begin the construction of such system at once, and making due appropriation for the work; that such sewers were constructed pursuant to a resolution of said court of burgesses; that at the same meeting of said court of burgessses at which said sewer construction was resolved upon as aforesaid and undertaken, it was also "Resolved that the sewer committee be authorized to superintend and direct the details of the work authorized at this meeting;" that the sewer committee referred to was a standing committee of the court of burgesses, and consisted of three of the six members of said court; that one of the officers of said borough was the borough surveyor, a position occupied then and ever since by Charles N. Wood, a civil engineer; that he, under the direction of the court of burgesses, had prepared said general sewer system, and that his duties were defined by the following by-law: — "Chap. 13, sec. 1. The borough surveyor shall make all surveys, maps, plans, profiles, specifications and estimates necessary for the public works and street improvements of the borough, and superintend execution of such works and improvements, and cause to be carried into effect all orders of the court of burgesses, in reference thereto, whenever such duty is not other-wise specially assigned by said court;" that at the outset of this sewer construction the sides of an open sewer trench, about five hundred feet long and ten feet deep, caved in, by reason of neglect to properly shore or brace the sides of the excavation, and broke down the plaintiff's gas pipes, in the solid earth, from two to three feet away from the trench; and that thereupon the plaintiff claimed that the injury thus resulting to its gas pipes was due to negligence in the construction of the sewers. The finding then proceeds as follows: — "Having offered evidence as aforesaid, the plaintiff then offered evidence to prove that the sewer committee, after some damage had been done to the plaintiff's pipes, authorized and directed the plaintiff to employ sufficient men and provide materials to secure the plaintiff's mains and pipes from any injury which might result from the defendant's operations, and to repair said mains and pipes when broken or injured thereby; and agreed with the plaintiff to reimburse the plaintiff for all the expense it might so incur. To this evidence the defendant objected, and the court sustained the objection."

"The plaintiff then offered the same evidence in connection with other evidence tending to show that the defendant had acted upon the faith of said action of the sewer committee, and had performed the work contemplated by said arrangement; for the purpose of showing that the defendant had due notice that said work was performed for the borough, upon a claim for reimbursement from the defendant, and of which the defendant had the full benefit; and upon the further offer by the defendant to show that no objection was ever made by the defendant to the rendering of said services or the furnishing of said materials. The defendant objected to the evidence thus offered, and the court sustained the objection."

"The plaintiff offered to show that the foregoing arrangement was also authorized by Charles N. Wood, the borough engineer, and that it was performed at his request and with his knowledge and assent throughout. This evidence was claimed for the purpose of direct proof of the claim for reimbursement under the third count, and also for the purpose of thereby showing notice to the borough that said work was performed and materials furnished for the benefit of the borough, with notice to it and without objection. The defendant objected to the evidence and the court excluded it."

"The plaintiff offered to prove that Charles N. Wood, acting in his capacity as borough officer or agent, directed the plaintiff to perform the work of repairing its gas pipes, broken in the course of construction of the sewers, as set out in the bill of particulars filed under the third count, upon the credit of and to be paid for by the borough; that he reported to the court of burgesses at a regular meeting of the court in the presence of the superintendent of the plaintiff company, that he had made such agreement, that the work was being performed under it, and that the individual members of the court of burgesses then and there assented to it, though it was admitted that no formal vote was taken or recorded. This evidence was claimed for the purpose of showing notice to the borough of the work being done, and the claim and belief under which it was being done, and as a ratification and acceptance of the act of said Wood, and the plaintiff claimed that no vote or record evidence was necessary to bind the borough to pay for such services and material. The defendant objected to the evidence and the court excluded it."

"No evidence was offered to show any vote or other action of the borough, or court of burgesses, authorizing or confirming the claimed action of the sewer committee and borough engineer aforesaid, and it was not claimed that there was authority for said action other than as is hereinbefore stated."

Were the foregoing rulings of the court, all of which were duly excepted to by the plaintiff, correct?

It is true, as insisted by the defendant in its brief, that before the acts or declarations of either of these claimed agents, the borough engineer or the sewer committee, could be received in evidence to bind the defendant by virtue of their agreement or promise alone, their authority to make such a contract must have been shown, and that neither their acts nor declarations were proof of such authority. It is also true, as it seems to us, that the preliminary evidence offered as hereinbefore stated, (the contract hereafter referred to not then having been laid in, nor would it have altered the case if it had been,) did not show such authority, either by virtue of their powers generally as public officers, or of the votes and by-laws which gave them special authority. And it is further true that such powers as the court of burgesses of the defendant borough had, of either a legislative or discretionary nature, could be legitimately exercised only by the coming together of the members who composed it, and the expression of this purpose or will embodied in a vote in some distinct and definite form. But, notwithstanding all these considerations, we are of the opinion that this evidence, when offered in its entirety, should have been received and submitted to the jury, as tending to prove the third count in the complaint, and this, as it appears to us, upon the plainest and most manifest principles of equity and good conscience. The preliminary evidence tended to show an adoption by the borough of a general system of sewerage, the cost of which was to be borne by the borough at large, and the investing, by the borough, of its court of burgesses with full power and authority in the matter of construction; that said court of burgesses authorized the sewer committee, being three of its own six members, to superintend and direct the details of the work, and that the borough surveyor, or engineer, as he has been styled, by virtue of a by-law of the borough, also possessed important powers to be exercised in behalf of the borough; and that at the outset of the work of construction an injury occurred to the plaintiff's property claimed to be due to negligence in such work. Upon this state of facts, and after such damage done to the plaintiff's property, that the sewer committee and borough engineer or surveyor should have undertaken to authorize the plaintiff to use competent means to protect its property from further injury which might result from the defendant's operations, and should have offered to reimburse the plaintiff for the expense which it might incur thereby, would find a natural and reasonable explanation upon the ground that in that way, at less expense than in any other, could the borough relieve itself from liability to the plaintiff for such damage resulting from its acts as it would be legally obligated to make compensation for. Such officers, clothed with such powers and charged with such duties as we have seen, to be exercised and performed for and in behalf of the defendant borough, could scarcely have hesitated in arriving at the conclusion that under such circumstances the employment of the plaintiff would be an act which their principal would not fail to ratify and confirm. On the other hand, we think the plaintiff, under such circumstances, although bound to know the extent of the authority of the defendant's agents, would be justified in doing the work contemplated by the arrangement for the borough, upon a claim for reimbursement from it; provided, (as we have seen the plaintiff also offered to prove) a report was made while the work was being performed, to the court of burgesses, at a regular meeting thereof, in the presence of the superintendent of the plaintiff company, that such agreement had been made, and that the work was then so being performed under it; and that the individual members of the board then and there assented to it. This was a matter in which the borough could speak only by its court of burgesses. Upon the facts offered to be proved it would at least appear that no disapproval of the reported action of the officers of the borough was manifested by that body. The time to deny the authority of such agents to contract with the plaintiff, in behalf of the borough, for what they deemed to be for its interest, was when the report of their action was made. Failure then to dissent, silence when it became a duty to speak, constituted assent. Retaining then the benefit of the contract, the borough must be held thereby to have ratified it, and to be estopped from afterwards denying its liability under the arrangement made with the plaintiff. Perry v. SimpsonWaterproof Mfg. Co., 37 Conn., 520, 534; New Haven,Midd. Will. R. R. Co. v. Town ofChatham, 42 Conn., 465.

We have now to consider the errors alleged to exist in the charge of the court to the jury. As bearing upon the first of these the record states that the defendant, after proper preliminary evidence, offered certain contracts, for the purpose of showing that the acts of claimed negligence were not the acts of the borough, but were acts of the contractors, for whose negligence the defendant borough was not liable. The plaintiff objected to these contracts, first, as being no defense to its claim for damages to the property of the plaintiff, caused by negligence in the building of the sewers; second, as no defense to such claim so far as the damage was caused by negligence in blasting rock with dynamite, such blasting being an operation inherently dangerous; third, because, as a matter of construction, these contracts were not independent, and because the borough retained control over the work and manner of doing the work, and had the right to direct how all parts of it should be done. It was agreed that the contracts might be formally laid in, and that the plaintiff should have the benefit of all these objections, and that the court would make its final ruling in the charge to the jury with the same effect as though exceptions had been taken to the rulings of the court therein contained. The court charged the jury that the legal effect of the instrument was to create, as between the borough and the other parties signing, the relation of contractee and independent contractor.

Was this a correct construction? One of the contracts (both of which are admitted to be substantially alike) is annexed as an exhibit to the finding, and we have examined it with much care. It is of very great length, covering twenty closely printed pages. It is therefore, of course, impracticable to give it here in full. Nor is it essential for a due presentation of the question involved. It is provided in it that the court of burgesses of the defendant borough is authorized by its engineer, or such other person or persons, or in such other manner as it may deem proper, to inspect the materials to be furnished and the work to be done under the agreement, and to see that the same correspond with the specifications. And in the specifications it is prescribed, among other things, that "the work shall be backed in carefully, rammed and packed in and around the sewer, with proper tools, by trusty persons, approved by the engineer, and no tunneling will be allowed, except by written permission of the engineer. If, in excavating for any sewer or branch thereof, any water pipe, gas pipe, or other obstruction be met with, that in the judgment of the engineer should be avoided, then the party of the second part," (the contractors) "after the same has been measured by the engineer, shall immediately fill such excavation; "that the work shall be "prosecuted at and from as many different points in such part or parts of the avenues or streets on the line of the work as the engineer may from time to time, during the progress of the work, determine;" that plank foundations shall be laid when necessary in the opinion of the engineer; that all work to complete drainage shall be done according to the plans, etc., and "in accordance with all the directions of the engineer of said sewer committee;" that "in cases of rock blasting, the blast to be carefully covered with heavy timber, according to the ordinances of the court of burgesses relative to rock blasting, which shall be strictly observed," (meaning, the plaintiff insists, those thereafter to be passed, as evidence was offered to prove that none then existed); that certain rock should be excavated "with as little blasting as possible, and under the immediate supervision and direction of the engineer or his assistant;" that "if any person employed by the contractor on the work shall appear to the engineer to be incompetent or disorderly, he shall be discharged immediately, on the requisition of the engineer, and such person shall not again be employed upon them without permission of the engineer;" that "if any materials or implements shall be brought to the ground which the engineer may deem to be of improper description or improper to be used in the work, the same shall be removed forthwith."

These provisions, and others of similar import in the contract and specifications, certainly denote that a high degree of power to be exercised in the supervision of the work and to insure its performance by the contractor, was reserved by the defendant borough to its agents, acting in its behalf; and, when coupled as it is with other provisions providing for the responsibility of the contractor "for all damages which may happen to neighboring properties, or in any way from neglect," and that he shall at his own expense, "shore up, protect, restore and make good, as may be necessary, all buildings, walls, fences or other properties which may be disturbed or injured during the progress of the work" — fairly indicate that an intention existed on the part of the borough to reserve such control as in the judgment of its advisers was inconsistent with such immunity from liability as is now claimed in its behalf. But on the whole we are inclined to think that the weight of authority upon this question justifies us in holding that the reservations of control, being but partial, and existing in certain respects only, did not prevent the existence of the relation of contractee and independent contractor; that the general control over the work, as to the manner and method of its execution, the oversight and direction of the performance of the actual manual labor, especially in the particulars in the execution of which the plaintiff claimed that the injury to its property was caused, notwithstanding the prescribed limitations, remained in the contractor; that the persons doing the work were his servants, not those of the defendant, and that these considerations relating to general control constitute the true test by which to determine whether the relation be that of employer and contractor or that of master and servant. We think, therefore, the charge of the court in this respect was correct. Corbin v. Am. Mills Co., 27 Conn., 274; Wood on Master Servant (2d ed.), 594 to 615 and notes; 14 Am. Eng. Ency. of Law, 841, and note 3, and cases cited; Cooley on Torts (2d ed.), 616, and cases cited.

The court further said to the jury that if the work was done by skilled and competent contractors, under the written contracts referred to, and the injury to the plaintiff's property occurred in consequence of the negligence of such contractors or their workmen, the defendant would not be liable, provided it did not interfere with and assume control, and actually control said work and the method and means of its performance, and provided the same could be done by the ordinary means of performing such work without necessarily injuring the plaintiff's property. Of this instruction the plaintiff also complains, insisting that the language used treats the right to control as immaterial, and as imposing no liability until exercised. It is indeed true, as the plaintiff says, that "it is not the fact of actual interference and control, but the right to interfere, which makes the difference between an independent contractor and a servant or agent." But when, as we have held in this case, the relation is the former, it is then correct to say, as the court did, that the liability of the contractee in such cases arises from the fact of actual interference and control.

The plaintiff also complains of the further statement of the court to the jury, excusing the defendant from liability for work done by independent contractors, provided the work could be done by ordinary means of performing such work without necessarily injuring the plaintiff's property.

And in connection with this the following language, used by the court and also complained of by the plaintiff, may be considered. The court said: — "The plaintiff claims that the use of dynamite in the operation of blasting is intrinsically dangerous. The defendant claims that it is not. The question is one to be determined by the jury, from all the facts in the case, whether under all the facts of the case, the operation of blasting with dynamite was intrinsically dangerous, no matter how skillfully performed." It is said that in making this last statement the court omitted to inform the jury what bearing such determination, when made, would have on the case. This appears to be true, at least so far as express language is concerned. Nor is the implication very clear. But let us inquire what is the correct doctrine to be applied in such cases. The principle appears to be well stated in Cooley on Torts (2d ed.), 644, as follows: — "In general it is entirely competent for one having any particular work to be performed, to enter into an agreement with an independent contractor to take charge of and do the whole work, employing his own assistants, and being responsible only for the completion of the work as agreed. The exceptions to this statement are the following: — He must not contract for that the necessary or probable effect of which would be to injure others, and he cannot by any contract relieve himself of duties resting upon him as owner of real estate, not to do or suffer to be done upon it that which will constitute a nuisance, and therefore an invasion of the rights of others. Observing these rules, he may make contracts under which the contractor, for the time being, becomes an independent principal, whose servants are exclusively his, and not those of the employer he contracts with. And the contractor is in no such sense the servant of his employer as to give the other rights against the employer growing out of the contractor's negligence." And Judge COOLEY then quotes at length, in the text, the rules laid down by the late Chief Justice SEYMOUR, in an opinion prepared by him as arbitrator, in the case of Lawrence v.Shipman, reported in the supplement to39 Conn., 586. And we think that, notwithstanding the almost infinite discussion of the subject in treatises and reported cases, it has nowhere been better, if indeed as well treated as in that opinion, in which a continuing liability in the contractee is declared to exist in four cases, notwithstanding the employment of an independent contractor to do the work. The first and second of these cases are thus stated: — "1st. If a contractor faithfully performs his contract, and a third person is injured by the contractor in the course of its due performance or by its result, the employer is liable, for he causes the precise act to be done which causes the injury. 2nd. If I employ a contractor to do a job of work for me, which in the progress of its execution obviously exposes others to unusual peril, I ought, I think, to be responsible, upon the same principle as in the last case, for I cause acts to be done which naturally expose others to injury." The first of these cases only, in which the ground of liability is not negligence either of the employer or of the contractor, since the injury is occasioned by the due performance or result of the work, was embraced by the court in its charge to the jury, because work "necessarily injuring the plaintiff's property" is equivalent to work which "faithfully performed," causes injury "in the course of its due performance or by its result." The second case should have been stated instead of the first, and the jury instructed that the defendant would be liable for negligence of the contractor, resulting in damage to the plaintiff's property, provided the work, in the progress of its execution, although it might have been performed without necessary injury, obviously and naturally exposed the plaintiff's property to probable injury or unusual peril; in this case, of course, resulting not from the adoption of the system or the location or plan of the sewers, but in the use of the ordinarily and reasonably to be contemplated means or agencies for the proposed construction.

We think, also, that the operation of blasting with dynamite is "intrinsically dangerous;" that the court should have taken judicial notice that it is so; and that the charge on this point was not correct, although it might have been if it had been complete, and in such completeness it had stated to the jury that, while the operation of blasting with dynamite was intrinsically dangerous and should be so regarded, yet whether, under all the facts in the case, the work contracted to be done for the construction of the sewers called in its natural, ordinary and reasonable execution for such use of such intrinsically dangerous agency and means as would have obviously exposed the plaintiff's property to probable injury therefrom, was for the jury to determine; and that, if so, the defendant could not excuse itself from liability for injury so occasioned, by reason of any contract with another to perform the work. It is as sound a rule of law as of morals, that when, in the natural course of things, injurious consequences will arise to another from an act which I cause to be done, unless means are adopted by which such consequences may be prevented, I am bound, so far as it lies within my power, to see to the doing of that which is necessary to prevent the mischief. Failure to do so would be culpable negligence on my part. Bower v.Peate, L. R., 1 Queen's Bench Div., 321. Certain of the provisions in the specifications, to which reference has been made, were apparently inserted in recognition of this principle. But in such cases it is not sufficient that the employer contracts with another to use the care to prevent harm, which the hazardous nature of the stipulated work requires. He is bound, at his own peril, to see to it that such care is used. And he is responsible, as for his own negligence, if it is not.

The record before us discloses that the plaintiff upon the trial offered evidence to prove, and claimed to have proved, that those constructing the sewers were excused by the defendant from the stipulation in the contract requiring the contractor to protect the plaintiff's gas pipes and mains, and that no one was substituted to protect them, and that they were not in fact protected except by the plaintiff under its claimed agreement with the borough, as before stated. And the plaintiff assigns as one of its reasons of appeal, the failure of the court to charge the jury as to the effect of excusing the contractors from such obligation. We need not, however, in view of what has already been said, touch upon this matter, except to say that such excuse, if true in fact, would be significant in connection with the alleged contract between the plaintiff and the defendant, as set up in the third count of the complaint.

The court also said to the jury: — "If you find from the evidence that those contractors or either of them were unskillful and incompetent to perform the work assumed by them under the contract, and that the borough, knowing this, employed them to do the work, the borough would be negligent in knowingly employing such a person to do the work, and would be responsible for any negligence of such contractor in the same manner that the contractor would be liable for his own negligence." We think this language imposed upon the borough a too limited measure of liability; that it would be liable, as stated, not only in consequence of negligence, which would certainly be most gross, in knowingly employing incompetent contractors, but also in failing to exercise due and reasonable care to select such as were skillful and competent. And in this respect also, we think there was error.

The plaintiff claims further that the court in substance charged the jury that the construction of the sewer by the defendant was but a performance of its duty to maintain and keep its streets in repair, while it appeared that it was in fact done under a charter granted by the legislature, upon a petition presented by the defendant, which charter was duly accepted by the defendant before it went into effect. It was said that the court therein erred in stating as a fact that which was not so, thereby creating for the defendant a larger immunity from liability than was justified. It seems to us that this criticism is not well founded, for, waiving the question whether the plaintiff correctly characterizes the charge of the court, though it hardly seems to us that it does, or whether, if so, such charge is correct, it is not pretended that the court did not accurately state the plaintiff's claim for damages as being based upon the negligence of the defendant, as the plaintiff expressly claimed in that part of its case which related to the matter of pleading, which we have before considered, or that the court erred in adding "but the plaintiff, as you will understand, does not base its claim here upon any fault of the system, plan or location adopted by the defendant. It says that, assuming that to be proper, the defendant negligently constructed the sewers, and by its negligence caused the damage to recover which the action was brought." For such negligence, it was not intimated in the charge of the court, or claimed upon the trial, nor can it be claimed, that there is any difference in the degree of liability, where the work is constructed under a special privilege or in the performance of a public and governmental duty. The immunity is no greater in one case than in the other. The statement complained of, therefore, was, as bearing upon the issues presented, entirely immaterial and unimportant and productive of no possible harm to the plaintiff.

Other minor objections to the charge were made by the plaintiff, but we think they are fairly covered by what has already been stated. At any rate they do not seem to require further mention, only to say, in view of the possibility of the questions again arising upon another trial, that in all other respects, except as noticed, the charge appears to us to be correct, and well adapted to the issues which were on trial.

There is error and a new trial is granted.

In this opinion the other judges concurred.