Judges： Approved, Bond, Boy, Broiun, Brotan, Ferriss, Graves, Kennish, Lamm, Rewritten, Said, Since, Valliant, Woodson
Filed Date： 3/1/1912
Status： Precedential
Modified Date： 11/10/2024
— Appeal from a judgment of the circuit court of Jackson county sustaining a demurrer to the petition filed by plaintiff charging negligence resulting in personal injuries. The petition was filed on the 15th day of July, 1905, and covers nearly thirty printed pages. The suit was filed against Kansas City and Robert J. Boyd Paving & Construction Company, but subsequently dismissed as to the Construction Company.
It appears from the petition that on the 13th day of May, 1901, Kansas City entered into a contract with the Construction Company for constructing a district sewer in said city by said company. In the course of the ensuing work plaintiff was employed by the Construction Company as a common laborer, and was engaged in drilling holes for blasting rock which was encountered in the work of excavation. The petition charges that the method of preparing the blasts was as follows: The drillers, of whom plaintiff was one, would drill a series of holes about two feet apart, after which such holes would be loaded with giant powder o.r-dynamite by one Kelleher, foreman, and one Moriarity, designated as the powder man, employees of the Construction Company, who would then shoot said holes by means of fuses; that it was usual and customary to count the number of holes in a given series before exploding same, then count the explosions to see whether they corresponded with the number of holes, and afterwards to inspect and examine the holes so exploded for missed shots; that the plaintiff and his gang had nothing to do with the loading or exploding of the holes, nor with the subsequent inspection, but that after the holes had been exploded and inspected plain
The plaintiff makes the proper averments to negative any contributory negligence on Ms part.
There seems to have been no controversy as to the liability of the Construction Company for the negligence of its superintendent. The real controversy in the case is whether Kansas City is liable. The petition proceeds upon the theory that because of the power of control reserved in the contract to the city’s engineer, the Construction Company was not an independent contractor, and, hence, the city is liable. In stating below the substance of the petition, we adopt the italics as they appear in the abstract filed by plaintiff. We do not apprehend that these italics appear in the original contract, but use them because they indicate the parts of the contract on which the plaintiff particularly relies.
Plaintiff alleges that the city ordered the construction of the sewer; sets out certain ordinances of the city which provide for the appointment of a city engineer whose duty it should be “to supervise the construction of public and district sewers;” also to prepare plans, specifications and estimates of the cost of all public and district sewers ordered by the council; to report to the board of public works all violations of 'any contract; to sign all contracts on behalf of the
“Permit for Blasting: — No person shall do or cause to be done any blasting within the city limits without first obtaining from the city engineer a permit therefor, which shall be issued only on condition that the city engineer is satisfied that the applicant is in every particular 'a safe, careful and suitable person to use, and an expert in the use of, all explosives used in blasting, but no permit shall, under any circumistamces, be issued to any one until the applicant therefor has entered into a bond to Kansas City in the sum of not less than one hundred dollars or more than ten thousand dollars, as the city engineer may require, with at least two securities, to be approved by the city comptroller, conditioned that such person will carefully and prudently use such explosive, and will pay any and all damages caused any person by the use-thereof. And any person can sue on such bond in his own name for any damage caused him by the use of. such explosive.”
The petition sets out in haec verba the contract between the city and the Construction Company. This contract is extremely lengthy, is in the usual form of municipal contracts for public works, giving specifications as to the character of the work to be done, materials to be used, all under the supervision of the city engineer. The contract provides that the party of the first part (the Construction Company), having made the lowest bid, agrees to complete the work in a substantial and workmanlike manner, “in conformity with the plans of such work on file in the office of the city engineer of Kansas City, in strict obedience to the directions which may from time to time be given by said city engineer or his authorized agents, in accordance with the following specifications.” The specifica
This contract was entered into by the Construction Company, as party of the first part, the National Surety Company, party of the second part, and Kansas City, party of the third part; the National Surety Company being surety for the contracting company for the faithful performance of the contract. The said party of the second part agreed “that the said party of the first part will well and faithfully perform each and all of the terms and stipulations in the foregoing contract; ’ ’ and further agreed that the work was to be begun within ten days, “unless the city engineer shall specially direct otherwise.” The contract is signed by the city engineer on behalf of the city, and was duly approved and confirmed by the city council.
The various specifications of negligence charged against the city are scattered through this lengthy petition in a somewhat confused and inconsequent manner. We have, however, carefully analyzed the same, and find the specifications of negligence may be stated as follows:
1. That the defendants knew, or might have known by the exercise of due care, that there was an unexploded shot in one of the drill holes, but that they negligently and carelessly failed to remove said danger or to warn plaintiff thereof, and negligently ordered plaintiff and his gang to go to said place and drill a new series of holes in close proximity to said unexploded charge.
2. That the injury to plaintiff resulted from the immediate carelessness and negligence of the foreman, Kelleher, and the powder man, Moriarity, who were working under the direction and control of the defendants; that they were not safe, careful or suitable persons for the performance of their duties; were not experienced, and were not competent; that the defendants knew of such incompetency, and were negligent in entrusting them with the work, and that defendants knew that Moriarity was utterly incompetent.
3. That the defendants negligently and carelessly failed and refused to obey the terms of section 883 of the ordinances, set out above, and that tney carelessly and negligently violated said ordinance, in that they failed to compel a compliance with said ordinance, which required them to employ expert licensed blasters; that the blaster employed by them was incoru
4. That the city reserved and had the power to direct and control the manner of performing'said work of blasting, and to direct and control all the workmen, and was careless and negligent in failing to exercise such power and control, and negligently caused the same to be done without reasonable care and prudence, and that the defendants were negligent in failing to superintend and. control the. manner of performing-said work of blasting in all its details; that the engineer had the power and authority to control and direct all the workmen as to the manner of doing the work, and especially the manner of doing said work of blasting, but negligently failed to exercise such control.
5. That said series of holes to which said unexploded shot belonged was excessively, unusually and unreasonably large in number, and that the foreman and powder man were negligent in attempting to explode same at one time.
6. That the defendants were careless in failing to provide and use on said job reasonably safe explosives or safe and suitable fuses.
7. That defendants were, negligent in failing to provide said foreman and powder man with proper, usual and reasonable tools and instruments with which to search and examine for unexploded powder.
8. That defendants negligently failed to provide said foreman and powder man with proper, usual and reasonable tools and instruments for cleaning out old drill holes and removing powder from unexploded
9. That the Construction Company was at the time of entering into said contract a corporation organized under the laws of Missouri; that it was an insolvent and irresponsible corporation, and was not a fit, proper or suitable corporation for the city to enter into said contract with, and that said, defendant city was negligent and careless in entering into said contract with said Construction Company, in that said company was an insolvent, irresponsible company, and not a fit, proper or suitable corporation for said work, and that the defendant city, at the time of entering into said contract, and throughout the performance of said work, had knowledge of the foregoing facts, or by the exercise of ordinary care would have had knowledge thereof.
10. That said engineer had authority and power to. cause the discharge of all incompetent, disorderly and unfaithful servants engaged on said work, and was negligent in failing to cause the discharge of said foreman and powder man, and, further, in failing to cause the selection and employment of a qualified blaster-one qualified under "the terms of section 883 of said ordinance.
11. That the defendants and each of them failed to use reasonable care to provide plaintiff with a reasonably safe place in which to work, and negligently failed to use reasonable care to keep said place of’ work reasonably safe.
It is further averred in said petition that explosives could be used for blasting in said sewer only by an expert, and that such work required special ability, skill and training; that said unexploded charge was not a risk necessarily incident to said employment; that it was a danger which “could have been obviated by the adoption of reasonable measures of precaution by the defendant, and that the defendants negli
It is apparent from reading the contract incorporated in the petition, and above abstracted, that the actual work of constructing- the sewer was performed by the employees of the contracting company which, under the contract, furnished the labor and material; so that wherever in the petition the plaintiff speaks of the defendants, including the city, it is not intended to be asserted that the city was in actual, physical charge of the details of the work, but that by operation of law the employees of the contracting company were the servants of the city; so that, in so far as the pleader charges negligence upon the city, it is a legal conclusion.
The above specifications of negligence charged against the city, with the exception of numbers 3 and 9, may be grouped together for the purposes of this discussion. The liability of the city predicated upon
I. The petition proceeds upon the theory that under the contract between the city and the Construction Company, the city reserved the direction and control of the immediate acts which, because of their negligent performance, resulted in injury to plaintiff, and the city is therefore responsible for such acts.
As the material parts of the contract are set out in haec verba in the petition, the court will look to the contract itself and construe it according to its terms, regardless of the construction placed upon it by the pleader. Following settled rules of construction, we consider the circumstances of its creation, the object-sought to be accomplished, and the terms of the entire instrument. So considered, does a fair construction of this contract sustain the contention of plaintiff? Counsel for plaintiff asserts in his brief as his basic propositions the following: “The contractor was not independent as to blasting. As to blasting, the contractor was subservient and was completely under the power of control of the defendant. As to blasting, the .relationship of principal and agent subsisted be
Leaving the question of the alleged incompetency of the contractor for later discussion, we will consider the contract. It is in the usual form of contracts for municipal public works, specifying at length and in detail the work to he done and materials to be used, all material and labor to be furnished and paid for by the contractor, who is to be paid for a completed sewer a lump sum to be ascertained by the dimensions thereof. In order to secure a satisfactory job, the owner (Kansas City) reserves to its engineer large powers of supervision and control as to quality of material and the method o.r mode of construction. Obviously, however, these powers are reserved to protect the interests of the city, and not in the interest of the contractor or his servants, nor for their protection. Neither the contractor nor his servants would have ground for complaint should the city fail to exercise such power of supervision. The engineer assumed no duty to plaintiff by the terms of the contract. The plaintiff did not look to the city inspector to protect him from unexploded charges. His reliance was on the foreman employed by the contractor. The contract must be construed as a whole, not upon detached phrases which in themselves in a proper relation might be apt enough to sustain plaintiff’s claim. Taken as a whole, it is plain enough that the powers given to the city engineer are solely for the purpose of securing compliance with the specifications provided in the contract. By no fair construction can the provision authorizing him to direct the mode of doing the work
In the case at bar the contract does not authorize the city to give direct orders to the workmen. The city does not hire them nor pay them. The liability of the master for the negligence of his servant arises from the fact that he selects the servant with a view to his skill, and is therefore responsible for such selection. There is no. such basis here for imputing responsibility to the city.
In the ease of Carman v. Railroad, 4 Ohio St. 399 (cited by plaintiff), discussing whether the owner or contractor is liable, the court suggests this distinction: “In the one case, the principal (owner) selects the servant or agent with a view to his skill and care, and not only retains the control over all his operations, but also has the power to dismiss him at any time for misconduct. In the other, the contractor assumes this position, leaving the employer no control over the work or the persons by whom it is executed, but simply the right to require the thing produced, or the result attained, to be such as the contract has provided for. ’ ’
A contract similar in general character to the" one before us, but in some respects giving greater power to the engineer, was construed in Norwalk Gas Co. v. Borough of Norwalk, 63 Conn. 495. The petition sought to hold the borough liable for injuries resulting from negligent blasting in the construction of a
There is no claim'in the petition in the case before us that the city, through its inspectors, in fact directed the acts which it is alleged caused the injury to plaintiff.
In Poster v. City of Chicago, 197 Ill. 264, it was insisted that the city was liable for an injury received
“It is true that the contractor agreed to perforin all the work ‘under the immediate direction and superintendence of the commissioner of public works, and to his entire satisfaction, approval and acceptance,’ but the work he agrees so to perform is that prescribed in the contract, and it is evident, we think, that this direction and superintendence relate to results — to the character of the workmanship — and not to methods, unless by the use of improper methods the character •of the workmanship was rendered unsatisfactory. . . . The contract does not include the direction, management and control by the city of every detail of the work. The contractor was not required to take his orders, day by day, from the city. He was to be guided by the contract and the specifications constituting a part thereof. He was not a mere servant and employee. He was an independent contractor, the city retaining such supervisory power as it might, from time to time, find it necessary to exercise to insure compliance with the contract and to obtain the result called for thereby. The contractor employed and paid his own laborers. The deceased was his employee. The difference between an independent contractor and a mere servant is not determined solely by tbe retention of a certain kind or degree of supervision by the employer. It is to be determined by the contract as a whole — -by its spirit and essence — and not by the phraseology of a single sentence or paragraph. Being a contractor, and not a mere servant of the city,*37 the latter cannot be held liable for his negligence in the performance of his work. . . .
“This is not a case where a party, when passing along or using a public street, has been injured because of the negligence of the city in permitting or causing a sewer to be constructed or other work to be carried on in such a street, creating a danger to passersby for which proper safeguards have been negligently omitted. In City of Springfield v. Le Claire, 49 Ill. 476, cited by the appellant’s counsel, the question was whether there was a duty resting upon the city growing out of the franchise conferred upon it to keep its public streets in a safe condition for the passage of travelers and others having occasion to use them, and the question was properly answered in the affirmative. But the deceased in the case before us was not a passenger or a traveler over the street when injured, and there is no analogy between the case so cited, or others of like character referred to by appellant’s attorneys, and the circumstances of the case at bar.”
We rule against the plaintiff on the proposition that the contract reserved to the city the control of the acts complained of.
II. It is urged that even if the city is not liable by contract, it is still liable because of its failure to perform a duty to plaintiff imposed upon it by law; that blasting is so intrinsically dangerous that it be-, comes the duty of the city, when it authoiizes its use in public work, to guard third persons, including the servants of an independent contractor engaged in the ivork, from the incidental danger. The industry of counsel for plaintiff in. error has brought to our attention numerous cases, as well as conclusions of test-writers, recognizing that the law imposes upon municipalities and owners of property certain obligations toward others which cannot be escaped by interposing an independent contractor as the active doer of the
It is said that blasting is intrinsically dangerous, and that therefore the city is liable for injury resulting therefrom. The doctrine as laid down in this regard by the authorities is that the city cannot escape whatever duty arises from the use of this dangerous agency by delegating the act to an independent-contractor. As to the extent of the duty imposed upon the city the authorities are not uniform. It has been held that this duty is to use due care only to prevent injury. [Booth v. Railroad, 140 N. Y..267.] It has also been held that in some instances, where blasting is- done in the street, the city is liable in any event, and cannot defeat a recovery by showing due care. We are not -called upon to lay down an exact rule on
The doctrine of the. cases referred to has no reference to a servant of the contractor engaged in blasting ; certainly not when, as here, the injury to the servant results from the sheer negligence of the contractor or his foreman in failing to protect the laborer in work which in itself is not inherently dangerous. The drilling of a hole for a charge of dynamite is certainly not an inherently dangerous task. The negligence of the foreman, which it is charged was the immediate cause of the injury, was not the natural and obvious result of blasting; so that even if the doctrine of cases involving the rights of outsiders be extended to the servant of the contractor, the servant in this case
In Missouri Valley B. Co. v. Ballard, 53 Tex. Civ. App. 110 (a case in point upon the facts), the servant of the independent contractor sued the owner. The court, after stating the general • doctrine of liability of the owner to the public, says: “The exception within which the verdict of the jury' has brought this case finds its’ best illustration in those cases where public streets have been made dangerous by excavations or otherwise, and where in the nature of things the safety of the traveling public has been endangered, unless needed precautions have been taken to prevent it. In such a case, as has been often said, the injuries are the direct result of the very thing which
If the owner directs the contractor to perform an act which is dangerous to others, even if carefully performed, he is liable to others for the consequences, In such case the injury results, not from the mode in which the act is done, but from the doing of the act by the most careful mode. The danger is incident to the act itself; hence, the owner is responsible for the consequences of the act. On-this principle rest the numerous decisions in cases where blasting throws rocks which cause damage. As was said by the Supreme Court of Arkansas in Railway v. Yonley, 53 Ark. l. c. 598: “If one» employs another to perform a work which from its nature is necessarily dangerous to the property of a third person, the employer cannot escape liability for the injury thereby done. In such cases the injury flows from the doing of the act as its natural consequence, and not from the manner in which the act is done.” But aside from the differential facts above referred to, the doctrine of liability of the city to outsiders, supported by plaintiff’s cases, is not extended by either reason or authority to include the servant of the contractor. If the foreman himself had been injured by his own negligence averred in the petition, it would hardly be claimed that the city would be liable; yet the doctrine for which plaintiff contends would protect the foreman, orpeven the contractor himself, from the consequences of his own negligence. It would be a strange anomaly in jurisprudence were we to hold that an employer is
Tbe true rule of liability is thus stated by Dillon in bis work on Municipal Corporations, sec. 1723, vol. 4. “Where the work contracted- for necessarily constitutes an obstruction or defect in tbe street, of such a nature as to render it unsafe or dangerous for tbe purposes of public travel,' unless properly guarded or protected, tbe employer (equally with tbe contractor), where tbe injury results directly from the acts 'which the contractor engaged to perform, is liable therefor to tbe injured party. But tbe employer is. not liable where tbe obstruction or defect in tbe street causing tbe injury is wholly collateral to tbe contract work, and entirely tbe result of tbe negligence or wrongful acts of tbe contractor, subcontractor, or his servants. In such a case the immediate author of tbe injury is alone liable.”
In Peoria B. & C. Trac. Co. v. O’Connor, 149 Ill. App. 598, a laborer employed by the contractor for a street railway company sued the railway company for injuries received on account of a defective derrick rope used in hoisting an iron pole in the street. The court, after stating the rule that protects persons using the streets, said: “If appellee had been injured while using such public street or ground as a passer-by thereon, appellant could not have relieved itself of liability for its negligence in creating such condition merely because the construction company had failed to do its duty. Appellee when injured was not in the
From the foregoing,reasoning and authorities, it is clear that, even conceding that blasting is intrinsically dangerous, there would he no liability in this case, as a matter of law, on the part of the city to plaintiff for injuries caused by the negligence of the contractor’s foreman.
III. It is claimed that the petition avers that the contractor was incompetent, and known to the city to he so. The charge in the petition falls short of this. Here it'is: “That said Robert J. Boyd Paving and. Construction Company was at the time of en tering into said contract and still is a corporation, organized and existing under the laws of Missouri. That it was an insolvent and irresponsible corporation, and was not a fit, proper or suitable corporation for the city to enter into said contract with, and that defendant city was negligent and careless in entering into said contract with said Robert J. Boyd Paving and Construction Company, in that said company was an insolvent, irresponsible company, and not a fit, proper or suitable corporation for said work, and that the defendant city at the time of entering into said contract, and throughout the performance of said work, had knowledge of the foregoing facts, or by the exercise of ordinary care would have had knowledge thereof.” * ‘
The unfitness alleged must be referred to the alleged insolvency. Furthermore, for reasons given above, a charge of incompetency would not help plaintiff. The city owes no duty to the servant of the contractor to provide him a competent and skilful employer. In Schip v. Pabst Brewing Co., supra, the court (L. c. 25) said: “Neither has our attention been called to any case where the owner was held liable on
The following cases are cited by plaintiff on this point: Brannock v. Elmore, 114 Mo. 55; Dillon v. Hunt, 82 Mo. 155; Mullich v. Brocker, 119 Mo. App. 332. But these cases refer to the obligation which the owner owes to outsiders. No ease has been cited, or found by us after extensive research, which extends this obligation to a servant of the independent contractor.
IY. The pleader attempts to predicate liability against, the city because of the alleged violation of section 883 of the ordinance, requiring a license to qualify one to do blasting. On this point it is sufficient to say that the law is settled in this State that a city is not liable for failure to enforce its ordinances. [Ryan v. Kansas City, 232 Mo. 471; Loth v. Theatre Co., 197 Mo. 328.]
Tested by the foregoing reasons and authorities, the petition fails to state a case against the defendant city.
The demurrer having properly been sustained, the judgment of the circuit court is affirmed.