Ulmen v. Schwieger

The complaint does not state facts sufficient to constitute a cause of action, in that

(a) It wholly fails to disclose the causal connection between the respondent's injuries and appellant's breach of duty, if any. It is elementary that the breach of the very duty made to appear by the complaint must be the proximate cause of the injuries sustained; otherwise a cause of action is not stated. (Robinson v. F.W. Woolworth Co., 80 Mont. 431, 261 P. 253; O'Neil v.Christian, 60 Mont. 460, 199 P. 706.) While respondent details how he and his sister came upon the grade and ran headlong into the culvert, he nowhere avers that they did so because of the implied invitation alleged to have been extended to the public, or in reliance thereon. The causal connection between the duty breached and the injuries does not appear. (Wallace v. Chicago, Milwaukee etc. Ry. Co., 48 Mont. 427,138 P. 499; Cummings v. Reins Copper Co., 40 Mont. 599,107 P. 904; Kirby v. Oregon etc. R.R. Co., 59 Mont. 425,197 P. 254; Fusselman v. Yellowstone etc. Co., 53 Mont. 254, Ann. Cas. 1918B, 420, 163 P. 473.)

(b) It is not shown that the appellant Schwieger failed to take proper precautions within a reasonable time after notice of the danger. We believe it is settled law that such a complaint as that at bar must show affirmatively notice in time either to remedy or protect against the defects alleged; that failing in this essential particular no cause of action is stated. (McEnaney v. City of Butte, 43 Mont. 526, 117 P. 893;Smith v. Zimmer, 45 Mont. 282, 125 P. 420; Boyle v.Chicago etc. Ry. Co., 60 Mont. 453, 199 P. 283; Phillips v.Butte Jockey etc. Assn., 46 Mont. 338, 42 L.R.A. (n.s.) 1076, 127 P. 1011.)

The evidence is insufficient to justify the submission of the case to the jury in that

(a) The proof affirmatively shows the relation of employer and independent contractor existing between the appellant Schwieger and the subcontractors who built the grade and culvert, and created the situation of which the respondent complains. The appellant is not liable for the acts of the independent contractors Roscoe and Adams. (Shope v. City of Billings,85 Mont. 302, 278 P. 826; Allen v. Bear Creek Coal Co.,43 Mont. 269, 115 P. 673.) The sole qualification of this broad general rule is that where the direct and necessary result of the work which the independent contractor stipulates to perform is the injury complained of, that is, when the work done is inherently and of its very nature dangerous or amounts to a public nuisance, the master is still liable. The evidence at bar shows that between the appellant Schwieger and the subcontractors Roscoe and Adams there existed only the relation of master and independent contractor; that the work undertaken by these two subcontractors was neither unlawful nor inherently dangerous; that it in nowise constituted a public nuisance; that if the respondent were in anywise exposed to injury the risk arose from the manner in which the subcontractors performed their contracts and carried out the work; it did not inhere in and arise from the job stipulated to be done.

(b) The respondent's case discloses affirmatively that a proximate cause of his injuries was his own act of driving the car down the new grade and into the culvert. Where the plaintiff's case, either as pleaded or proved, shows that his injury resulted from his act, the imputation of contributory negligence attaches, and he must thereafter sustain the burden of showing that he was free from fault. (Stanhope v. EkalakaTelephone Co., 65 Mont. 599, 212 P. 287; Harrington v.Butte etc. Ry. Co., 37 Mont. 169, 16 L.R.A. (n.s.) 395, 95 P. 8; Puckett v. Sherman Reed, 62 Mont. 395, 205 P. 250;Lynes v. Northern P. Ry. Co., 43 Mont. 317, Ann. Cas. 1912C, 183, 117 P. 81; Howard v. Flathead etc. Co.,49 Mont. 197, 141 P. 153; Zvonavich v. Gagnon Co., 45 Mont. 180,122 P. 272; Page v. New York Realty Co., 59 Mont. 305,196 P. 871; Holland v. Pence Automobile Co., 72 Mont. 500,234 P. 284; Grant v. Chicago etc. Ry. Co., 78 Mont. 97,252 P. 382; Cameron v. Judith etc. Co., 61 Mont. 118,201 P. 575.) And with particular reference to this rule and the law of contributory negligence as applied to travelers upon a public highway, assuming the highway in question in this case at this point to be a "public highway," we cite these authorities as persuasive of our contentions: Buckingham v. Commary-PetersonCo., 39 Cal.App. 154, 178 P. 318; McGraw v. Friend etc.Co., 120 Cal. 574, 52 P. 1004; Brett v. S.H. Frank Co.,153 Cal. 267, 94 P. 1051; Crooks v. Stevens County,102 Wn. 231, 172 P. 1158; Shawano County v. Froemming Bros.,186 Wis. 491, 202 N.W. 186; Grosz v. Bone, 48 S.D. 65,201 N.W. 871; Kimmelman v. McGovern, 199 N.Y. Supp. 76.

Paragraph 40 of the contract between Schwieger and the state highway commission should have been excluded from evidence. There is on the face of this pleading no suggestion that Mr. Schwieger is charged with the nonperformance of any duty which he may have assumed by his contract with the highway commission, or thereunder. With respect to any duty which this contract may have laid upon him to exercise care for the protection of the traveling public the complaint is wholly silent. Under its allegations no issue of so-called "contractual negligence" is tendered.

We may assume for the purposes of our argument here that there is such a thing in the law of negligence as a so-called duty, assumed by contract, to exercise care toward third parties, particularly in the cases of persons and corporations in control of streets and highways. (See 45 C.J. 643; Metcalf v. Mellen,57 Utah, 44, 192 P. 676; McMahon v. Second Avenue R.R. Co.,75 N.Y. 231; Baumgartner v. City of Mankato, 60 Minn. 244,62 N.W. 127; and on the facts to the contrary, Romney v. Lynch,58 Utah, 479, 199 P. 974.) Yet in these cases where reliance was had as the ground of negligence upon a breach of contract between the defendant and a third party the duty imposed by the terms of the contract relied upon was in so many words assigned as the duty breached. (Metcalf v. Mellen, supra.) A plaintiff may not sue upon one cause of action and recover upon another. (American Livestock Loan Co. v. Great Northern Ry. Co.,48 Mont. 495, 138 P. 1102; Flaherty v. Butte Electric Ry. Co.,40 Mont. 454, 135 Am. St. Rep. 630, 107 P. 416; Forsell v.Pittsburgh Montana Copper Co., 38 Mont. 403, 100 P. 218;Hunt v. White Sulphur Springs etc. Co., 63 Mont. 508,208 P. 917; Riggs v. Webb, 77 Mont. 80, 249 P. 1041.)

But even if we are to assume that under the pleading paragraph 40 of the contract might properly be received in evidence, there is still entirely lacking from the case an essential element without which a liability predicated upon so-called contractual negligence will not stand up, viz.: That the contracting party who assumes the obligation to exercise due care must under the contract take possession of the premises involved and charge of the work undertaken. (Metcalf v. Mellen, supra;McMahon v. Second Avenue R.R. Co., supra; Baumgartner v.City of Mankato, supra; Grennell v. Cass County,193 Iowa, 697, 187 N.W. 504; Romney v. Lynch, supra.) Appellant Roscoe is sought to be charged herein as the servant of the appellant Schwieger, and not otherwise. It is settled law in this jurisdiction under the rule announced, as we construe it, in Hagerty v. Montana Ore Purchasing Co., 38 Mont. 69, that a servant is liable for his negligence to third persons, whether it be termed misfeasance or nonfeasance, only when as such servant he owes a duty to such third person which he has failed to perform. We further construe the decision in question to hold that such a duty is owing, from a servant to a third person, only when the servant is placed in a position of responsibility by his master and has, in effect, the same control of the master's property involved as the master himself would otherwise have. An analysis of the Hagerty Case, and of the decision therein cited, demonstrates this to be the law of this jurisdiction.

The evidence establishes without dispute that, prior to the accident complained of, the appellant Roscoe had completed his work as a servant of the appellant Schwieger. Roscoe, as such servant, was employed merely to construct the culvert involved, and nothing else. That culvert was completed the latter part of August, after which Roscoe left the culvert and neither he nor his servants returned to do any work thereon. Thus, Roscoe's contract with Schwieger was discharged by performance in August, 1928. The accident occurred upon September 2, 1928.

In Wilkinson v. Myatt-Dicks Motor Co., 136 La. 977, L.R.A. 1915E, 439, 68 So. 96, a portion of paragraph 2 of the syllabus in the L.R.A. reference reads as follows: "Where service is restricted to a single act or transaction, the relation of master and servant (if such exist) terminates with the act or transaction." (See, also, Donovan v. Oakland Berkeley Rapid Transit Co., 102 Cal. 245, 36 P. 516.) We can see no difference, in principle, between a servant and an independent contractor in cases of this character where an accident occurs after the completion of work one has been employed to do. The law appears to be well settled that after an independent contractor has completed his work on property he is not liable for injuries subsequently occurring through negligent failure to have the property in question in a safe condition. (Khron v. Bock, 144 Mass. 516, 11 N.E. 748; Young v. Smith Kelly Co., 124 Ga. 475, 110 Am. St. Rep. 186, 4 Ann. Cas. 226, and note upon page 228, 52 S.E. 765; Memphis Asphalt PavingCo. v. Fleming, 96 Ark. 442, Ann. Cas. 1912B, 709, note upon page 710, 132 S.W. 222.)

In connection with the foregoing argument it should be noted, too, that the doctrine of invitation upon which the respondent relies in this case is founded upon ownership or control of the property or instrumentality involved. (3 Shearman Redfield on Law of Negligence, sees. 699, 706; 45 C.J. 823; Montague v.Hanson, 38 Mont. 376, 99 P. 1063.) Here the appellant Roscoe was neither the owner, occupier nor person in charge of any portion of the highway project at the time of the accident. Therefore, it is clear that the doctrine of invitation has no application whatsoever here to the said appellant Roscoe. The complaint is sufficient. The facts are set forth in ordinary and concise language and the defendants surely understood the negligence with which they were charged. There is no complaint that they were unable to properly prepare for trial, and under the liberal rules of pleading provided by sections 9164, 9191, Revised Codes 1921, the objections cannot be taken seriously. (Grant v. Nihill, 64 Mont. 420,210 P. 914; Davis v. Freisheimer, 68 Mont. 322,219 P. 236; Robinson v. F.W. Woolworth Co., 80 Mont. 431, 261 P. 253.)

The general rule of liability: For the general rule in regard to liability of contractors for unguarded obstructions in highways, see Law v. Bryant Asphalt Paving Co.,175 Iowa, 747, 157 N.W. 175, reported in 7 A.L.R. 1189, where it is held that leaving a path open and unobstructed "is an invitation to its continued use." The court decided the case on general principles without a single citation. (See, also, Metcalf v.Mellen, 57 Utah, 44, 192 P. 676; McLaughlin v. Bardsen,50 Mont. 177, 145 P. 954; 29 C.J. 677, 678.)

Notice or knowledge to contractors: In this case the liability of Schwieger and Roscoe, who themselves either directly or through their agents brought about the condition, is not dependent upon knowledge or notice. The defendants did the work; they themselves brought about the condition. The very facts themselves were notice of the dangerous condition. (45 C.J. 653, 655.)

"When a party intentionally creates a condition, he is held to have knowledge of it and notice is not necessary." (Robinson v.F.W. Woolworth Co., supra.) That special notice was not required, see 25 A.L.R. 453-459; Sterling v. Schiffmacker, 47 Ill. App.? 141; Brooks v. Somerville, 106 Mass. 271; Bailey v. City of Winston, 157 N.C. 252, 72 S.E. 966.

Roscoe was an employee of Schwieger and the duty was nondelegable. (43 C.J. 949.) Even though designated an "independent contractor," the relation between Schwieger and Roscoe is admitted to be that of master and servant. Schwieger's duty to the highway commission was fixed, and the authorities are clear that he cannot delegate the duties to Roscoe and Adams and escape liability. (Mechem on Agency, secs. 1873, 1918, 1919, 1641; Thompson on Negligence, secs. 5956, 6020; Moll on Independent Contractors and Their Liability, sec. 141; Eaton v.Pallett, 137 R.I. 189, 52 A.L.R. 1007, 136 A. 437, and annotations; Pine Bluff Natural Gas Co. v. Senyard, 108 Ark. 229, 25 A.L.R. 419, 158 S.W. 1091;Blessington v. Boston, 153 Mass. 409, 26 N.E. 1113; Boston v. Coon, 175 Mass. 283, 56 N.E. 287; Mehan v. City of St.Louis, 217 Mo. 35, 116 S.W. 514.)

The work performed by Roscoe covered the duties of Schwieger, and the negligence of Roscoe in performing the duties was nevertheless Schwieger's under the authority quoted.

The rule is settled that both the principal and independent contractor are liable. The rule and annotations with reference to liability of a municipality and independent contractor are found in Charles Enue Johnson Co. v. City of Philadelphia, 236 Pa. St. 510, Ann. Cas. 1914A, 68, 71, 42 L.R.A. (n.s.) 512, 84 A. 1014. Even in a case where the public authorities cannot be sued, the contractor is liable. (Alameda County v. Tieslau, 44 Cal.App. 332,186 P. 398; Stockton Auto Co. v. Confer, 154 Cal. 402,97 P. 881; and cases cited in 29 C.J. 677-679; see, also,A.M. Holter Hardware Co. v. Western Mortgage Warranty TitleCo., 51 Mont. 94, Ann. Cas. 1915F, 835, 149 P. 489; 10 Neg. Com. Cas. Ann. 316, fully covers the question.)

The court's attention is particularly directed to the very interesting cases of Thomas v. Saulsbury Co., 212 Ala. 245, 24 Neg. Com. Cas. Ann. 320 (with annotations), 102 So. 115, and Mumbower v. Weaver, 282 Pa. 605, 128 A. 535, 24 Neg. Com. Cas. Ann. 329 (with annotations). In the first case the highway was in process of construction and a barrier had been placed across the road to close the traffic. It was held that the law imposed a duty to construct the barrier so that it could be readily seen at a safe distance by ordinary observation. It was held that the joint liability of a contractor and subcontractor in road construction grew out of the law of respondeat superior in the committing of a nondelegable public duty. (See, also, 23 A.L.R. 994, 1016, 1053-1057, 1084, 1111 et seq.) Additional authorities may be found in Anderson v. Fleming,160 Ind. 597, 67 N.E. 443, reported with extensive annotations in 66 L.R.A. 119; see, also, St. Paul Water Co. v. Ware, 83 U.S. (16 Wall.) 566,21 L.Ed. 485.

Contributory negligence: The defendants offered no evidence of contributory negligence of the plaintiff or of the driver of the car. The latter had a right to assume that the highway was safe for travel and certainly were not bound at their peril to stop and inspect the road ahead that appeared open and well traveled. They had the right to rely on the appearance. Contributory negligence will not be presumed or imputed to them without some evidence that they violated a duty of some kind. Neither the driver of the auto nor the plaintiff were required to be on the lookout for extraordinary dangers in the highway. (Laird v.Berthelote, 63 Mont. 122, 206 P. 445.)

In connection with contributory negligence claimed by the defendants, they assert that the negligence of Loretta Ulmen, the driver of the auto, should be imputed to plaintiff, who was riding in the front seat. The doctrine of imputed negligence has been rejected in this state as out of harmony with the prevailing judicial views in the Laird Case. In fact, it seems to be the established rule that contributory negligence cannot be charged against a person injured by "a danger hidden and unknown, and which he or she was under no obligation to have knowledge of." (Elias v. Mayor, 137 La. 691, 10 Neg. Com. Cas. Ann. 494, 69 So. 141; see, also, Staff v. Montana Petroleum Co.,88 Mont. 145, 291 P. 1042.)

As to the right of plaintiff to use the highway and the duty to erect barriers, see Law v. Bryant Asphalt Paving Co.,175 Iowa, 474, 7 A.L.R. 1189, 157 N.W. 175; McLaughlin v.Bardsen, 50 Mont. 177, 145 P. 954; Wolff v. State,122 Misc. Rep. 381, 202 N.Y. Supp. 754; 29 C.J. 677-679, 689; 27 A.L.R. 937; 36 A.L.R. 413. This is an action for damages for personal injuries. The jury found for plaintiff, and assessed his damages in the sum of $10,000. From the judgment entered on the verdict, the defendants separately appealed.

The evidence on some features of the case was conflicting, but the jury was warranted in finding the following salient facts: That on September 2, 1928, plaintiff, traveling by automobile, was taking his sister, Loretta, from Ray, North Dakota, to Miles City, Montana, where she had accepted a position as teacher in the high school. Plaintiff drove the car, an Essex coach, as far as Sidney, and then his sister, an experienced driver, did the driving until the plaintiff was injured. At a point about one mile west of Fallon, at about sunset, the car was driven into an open excavation and against a concrete culvert which had been constructed across what the plaintiff and his sister supposed was the regularly established and used highway. The top of the culvert was about a foot lower than the top of the highway, and between the top of the highway and the culvert was a sheer drop or pit; the hole and culvert were not discovered by the occupants of the car until the car was within twenty or thirty feet of the hole; efforts to stop the car before running into the hole were unavailing. The impact caused serious injuries to plaintiff. The car was being driven about twenty-five to thirty miles per hour before the occupants observed the pit and culvert. The road on both sides of the culvert had been graded and smoothed over up to the edge of the pit in which the culvert was erected, and, on approaching the culvert from the east, the road presented the appearance of being well traveled; there were no signals, signs or barricades at the culvert. The pit or hole was five or six feet deep, extending across the full width of the highway. The highway was a part of the state highway known as federal aid project 130-C, from Fallon to Terry, which was in process of construction during the year 1928; the contract for its construction was let by the state highway commission to defendant Schwieger in the spring of 1928. Paragraph 40 of the contract provided: "The Contractor shall provide, erect and maintain all necessary barricades, suitable and sufficient red lights, warning and danger signals, provide a sufficient number of watchmen and take all necessary precautions for the protection of the work and safety of the public. The Commission will provide and the Contractor shall erect and maintain acceptable and adequate detour signs at all closures and along the detour routes. All barricades and obstructions shall be illuminated at night, and all lights shall be kept burning from sunset until sunrise."

Formerly the road at a point about one-half a mile west of Fallon turned south across the railroad tracks, and then paralleled the tracks on the south; the new road was built on the old road until it reached the point where the old road turned south to cross the railroad tracks, and the new road, instead of turning south, continued due west, paralleling the railroad tracks on the north. The culvert was about 2,100 feet west of the point where the old road turned south to cross the railroad tracks. Defendant Schwieger did not himself perform the work under his contract with the state highway commission, but sublet the grade work to Herbert Adams and the concrete work to defendant Roscoe. Adams was an independent contractor. Roscoe agreed to build the culvert in accordance with the plans and specifications of the contract between Schwieger and the highway commission. The grading of the road had been completed about the last of July or the first of August. Defendant Roscoe started constructing the culvert about August 22; it was completed on August 31, but the dirt had not been filled in, due to the fact that it takes the concrete about twenty or twenty-one days to dry; Adams was chargeable with the duty of filling in the dirt beside the culvert. The concrete work had not been accepted by either the defendant Schwieger or by the highway commission on September 2; in fact, the grading had not been accepted by the highway commission.

Mr. Woodward, engineer for the highway commission, testified: "I don't know when this was accepted. Well, it was some time after the whole job was done; they don't accept any portion of the work at all; they accept the whole job complete. It is all accepted together. In fact, this work is the work of the respective contractor until the highway commission accepts it."

The old road, turning south to cross the railroad tracks, was the regularly used highway known as the Yellowstone and National Parks highway, and was still in use as such on September 2, and was the only road at that time and place that had formally been dedicated and opened for public use. There was a sharp drop of about four feet from the grade to the old road as it turned to cross the railway tracks, and it was not readily observable by one traveling the graded road without the aid of detour or other signs. For the sake of convenience only we shall hereafter refer to the old road turning off the grade as the "detour." The evidence was in sharp conflict as to whether there was an adequate detour sign or barricade at the point of the detour to advise travelers not to travel the new road.

In behalf of plaintiff, witnesses testified that, on many occasions prior to the time plaintiff sustained the injuries complained of, there were no detour signs or any barricade at the point of the detour, and that before as well as after the culvert was constructed many automobiles traveled, or attempted to travel, the new road, without any warning not to do so. Witnesses for defendants testified that a barricade was constructed at the point of the detour consisting of a telephone pole about sixteen feet long, placed across the road, with a fence post or tie under one end, raising the end about six inches off the ground; that to the pole was attached, first by nails, and later by wire, a "Road Closed" sign; that on the north end of the pole there was sufficient space to allow traffic to pass on the grade, but this was at times obstructed by a fence post laid across it, with one end against the north end of the telephone pole.

There was also a conflict in the evidence as to whether there was any barricade at the point of the detour on September 2 and prior thereto. The evidence is without dispute, however, that the barricade was found lying in the ditch off the grade at about 8 P.M. on September 2. And plaintiff's evidence was to the effect that there was no barricade at the time he traveled the new road to the culvert. From this conflicting evidence we must assume, since the jury found for plaintiff, that it found those chargeable with the duty of so doing did not discharge their duty to erect and maintain adequate barricades and detour signs to warn the traveling public.

Defendant Schwieger insists that, since he sublet all the work in connection with the construction of the highway to independent contractors, he cannot be held liable for the injuries to plaintiff.

The general rule is that an employer is not liable for the[1, 2] wrongful or negligent acts of an independent contractor. To this general rule there are well-recognized exceptions. One exception is where the work to be done is intrinsically dangerous or hazardous. This exception was pointed out in Shope v. City of Billings, 85 Mont. 302, 278 P. 826.

Judge Dillon, in his work on Municipal Corporations, fifth edition, section 1723, states the exception to the rule as follows: "Accordingly, the later and better considered cases in this country respecting streets have firmly and, in our judgment, reasonably, established the doctrine that, where the work contracted for necessarily constitutes an obstruction or defect in the street, of such a nature as to render it unsafe or dangerous for the purposes of public travel, unless properly guarded or protected, the employer (equally with the contractor), where the injury results directly from the acts which the contractor engaged to perform, is liable therefor to the injured party." (See, also, 39 C.J., 1335, and 14 R.C.L. 97.) The exception was given recognition in Cameron Mill Elevator Co. v. Anderson, 98 Tex. 156, 1 L.R.A. (n.s.) 198, 81 S.W. 282;Thomas v. Saulsbury Co., 212 Ala. 245, 102 So. 115;Montgomery v. Garza, (Tex.Civ.App.) 290 S.W. 210; Wilkey v. Rouse Construction Co., 224 Mo. App. 495, 28 S.W.2d 674, and other cases.

But defendant Schwieger contends that the exception to the general rule applies to cases only where the work contemplated by the contract has to do with obstructions or excavations in an existing highway, in use as such, and not to a case, as here, where the work contemplated was that of constructing a new highway where none existed before. Circumstances presented here make the exception applicable. The work contemplated by the contract between the highway commission and Schwieger was not altogether that of constructing a new highway where none existed before. For about half a mile west from the town of Fallon the work embraced in the federal aid project No. 130-C, which was awarded to defendant Schwieger, followed the course of the old highway; from the point where the old road turned south to cross the railroad tracks, the new road was but an extension of the old road already in use as the Yellowstone and National Parks highway. It should have been contemplated by the contracting parties that the work about to be done might give the road at the place where the injury occurred the appearance of safety and of being a finished, completed road before its actual formal acceptance as such by the highway commission, and before it was actually opened for use by the traveling public. It was actually contemplated by the contracting parties that the work involved danger to the traveling public.

To guard against the dangers occasioned by the work embraced[3, 4] in the contract, the contracting parties stipulated that the contractor, Schwieger, should erect the necessary barricades and "take all necessary precautions for the protection of the work and safety of the public," and to maintain adequate detour signs. The erection and maintenance of adequate barriers and detour signs to warn the traveling public was the very thing that would prevent the work from being intrinsically dangerous. Without the signs and barricades, the work was evidently regarded by the contracting parties as extremely dangerous. The duty to erect and maintain adequate signs and barricades could no more be delegated in a situation where, without them, the public would be misled into believing that the dangerous road was open for travel though not, in fact, formally opened for use, than in a case where the road was actually open for travel. The contract between the parties, the nature of the work to be done, and its connection with the extensively traveled existing highway, all point to the conclusion that the work was in fact inherently dangerous and hazardous to the public, and known to be so by the contracting parties, unless properly guarded. (McLean v. CrownTailoring Co., 29 Ont. L. Rep. 455, 15 D.L.R. 353.) This being so, the duty devolving upon defendant Schwieger, and which he specifically agreed to perform, was one which could not be delegated to another so as to relieve him of responsibility for its nonperformance.

As much was held under facts very similar in Hughes v.Robert G. Lassiter Co., 193 N.C. 651, 137 S.E. 806, 809. In that case the statute made it the duty of the highway department, as well as the contractor, to maintain suitable detours. The contractor agreed to do so in the written contract with the highway department. The court in that case said: "Under a mandatory statute and their contract, defendants owed a duty to the public which it cannot shirk and cast on another." It also held that the life and limb "of one who travels through the state is equally protected as one who lives in the particular locality."

As stated, this duty was imposed upon the highway commission, as well as the contractor, in that case, by statute, but the rule is the same where the duty arises by common law. And "it arises at law in all cases where more or less danger to others is necessarily incident to the performance of the work let to contract. It is the danger to others incident to the performance of the work let to contract that raises the duty, and which the employer cannot shift from himself to another, so as to avoid liability, should injury result to another from negligence in doing the work." (Covington Cincinnati Bridge Co. v.Steinbrock, 61 Ohio St. 215, 76 Am. St. Rep. 375, 55 N.E. 618, 619.) In that case, the court stated the general rule as follows: "The weight of reason and authority is to the effect that, where a party is under a duty to the public or third person to see that work he is about to do, or have done, is carefully performed so as to avoid injury to others, he cannot, by letting it to a contractor, avoid his liability, in case it is negligently done to the injury of another." (And see 39 C.J. 1336, and cases.)

In Bower v. Peate, L.R. 1 Q.B. Div. 321, 326, it was said: "That a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be averted, is bound to see to the doing of that which is necessary to prevent mischief, and cannot relieve himself of his responsibility by employing some one else — whether it be the contractor employed to do the work from which the danger arises or some independent person — or to do what is necessary to prevent the act he has ordered done from becoming unlawful. * * * There is an obvious difference between committing work to a contractor to be executed, from which, if properly done, no injurious consequences can arise, and handing over the work to be done from which mischievous consequences will arise unless precautionary measures are adopted." (And see, to the same effect, Wight v. H.G. Christman Co., 244 Minn. 208,221 N.W. 14; Blount v. Tow Fong, 48 R.I. 453, 138 A. 52; Mechem on Agency, secs. 1873, 1918; note in 18 A.L.R. 801, 23 A.L.R. 984 and 25 A.L.R. 426.)

Another exception to the general rule, that an employer doing a piece of work through an independent contractor is not liable for the latter's negligence, is where the employer has assumed a specific duty by contract. In such a case he cannot evade liability by employing another to do that which he has agreed to perform. (Atlanta Florida R. Co. v. Kimberly, 87 Ga. 161, 27 Am. St. Rep. 231, 13 S.E. 277; St. Paul Water Co. v. Ware, 18 Wall. 566, 21 L.Ed. 485; Scott Construction Co. v. Cobb,86 Ind. App. 699, 159 N.E. 763.)

Defendant Schwieger also predicates error in overruling his[5] objection to the introduction in evidence of paragraph 40 of the contract. He contends that the complaint contains no allegation of contractual negligence. The complaint alleges that it is the nondelegable duty of defendant Schwieger to erect and maintain adequate detour signs, and to erect and maintain barricades, guides and signals. It sets forth that the work contracted to defendant Roscoe was inherently dangerous, unless done with caution as to placing warnings and lights, and as to providing detours. It then alleges: "That by reason of the said work and of the said duties assumed by said defendant Schwieger in his contract with said highway commission and because the said work, if not done with reasonable care, was and would be a most dangerous public nuisance, the said Schwieger was and remained equally liable with the said Roscoe for any detriment or injury to any of the public that might be caused by the negligent conduct of the said defendant Roscoe."

Were we to hold that the complaint, in spite of these allegations, did not plead contractual negligence, or negligence based upon failure to comply with a contractual obligation, still we hold that paragraph 40 of the contract was admissible in evidence.

Whether necessary or not, Schwieger's duty was alleged in the complaint. In the absence of a special demurrer or motion to make the complaint more definite and certain, plaintiff could under the complaint introduce whatever proof was available to show this duty as alleged, even though the duty might, in the absence of the contract, have likewise arisen as a matter of law. Paragraph 40 of the agreement was admissible to show Schwieger's duty as alleged. (McMahon v. Second Ave. R. Co., 75 N.Y. 231.)

A similar contract was held a proper matter for consideration in Rengstorf v. Winston Bros. Co., 167 Minn. 290,208 N.W. 995, and in Metcalf v. Mellen, 57 Utah, 44, 192 P. 676.

It is also contended that the case should have been withdrawn[6, 7] from the jury because of plaintiff's contributory negligence. In brief, it is asserted that the negligence of the driver must be imputed to plaintiff, and that, since the car was driven into the hole and culvert, plaintiff's injuries were produced by his own act, or the act of his sister imputable to him, and that the burden rested with him to submit proof that he was free from fault. Whether, if the driver was negligent, such negligence would be imputed to plaintiff need not here be determined. Under the facts here, the court properly submitted the case to the jury. There was no evidence of negligence on behalf of the driver. The car was within twenty or thirty feet of the hole or culvert before it was observed by the occupants of the car. The hole and culvert were not readily observable because the road on both sides was smooth up to the excavation in which the culvert was placed. The road appeared to have been well traveled. There being no detour sign or barricade of any kind to advise them that the road was not in fact open for travel, they had the right to act on appearances without becoming trespassers at the place where the injury occurred. The appearance of the graded road was one of safety, and led plaintiff and his sister to believe that it was a completed highway in regular use as such. They had no reason to suspect that there was a hole and culvert, characterized by one witness as a "death trap," on what appeared to them to be the highway.

It was likewise proper, for the reasons stated, to refuse defendants' offered instruction that the burden of proof rested with plaintiff to establish his freedom from contributory negligence.

Defendant Schwieger contends that the allegations of the[8] complaint are insufficient to constitute a cause of action. The principal point relied upon in support of this contention is that it is not alleged that Schwieger failed to take proper precautions within a reasonable time after notice of the danger. As above stated, Schwieger had the positive duty of erecting and maintaining detours, signs and warnings. The acts of his subcontractors were his own acts. "Knowledge of the defect or danger is not a necessary element of negligence where the act or omission, in and of itself, involves a violation of a duty, * * * or where the negligent act or omission of the owner of the premises created the dangerous condition. * * * The notice of defect or danger which is necessary in order to impose liability for negligence need not be actual, for negligently remaining ignorant of that which it is one's duty to know has the same effect as actual knowledge and in such case one is said to have implied or constructive notice. * * * The governing consideration is what the person sought to be charged should reasonably have foreseen, the rule being that one is bound to anticipate the reasonable and natural consequence of his own conduct. One is charged with knowledge or notice of what a reasonably prudent person would have foreseen, and is negligent if he fails to use the care necessary to avoid danger, which should have been anticipated." (45 C.J. 653-655. And seeRobinson v. F.W. Woolworth Co., 80 Mont. 431, 261 P. 253.)

The complaint was sufficient to state a cause of action.

Error is predicated on the court's refusal to give to the jury[9] the following instruction: "You are instructed that if it appears from the evidence in this case that prior to the accident complained of, a barricade was installed on the new grade here involved which was sufficient to prevent a reasonably careful and prudent person from attempting to travel upon that grade, and that prior to the accident the said barricade had been removed wholly or partially by some person other than the defendants so that the said grade was left open to travel, then and in such event the plaintiff cannot recover in this action against the defendants, or either of them, in the absence of further proof that the fact of the removal, in whole or in part, of the said barricade was known by the defendants, or by one of them, in time to replace such barricade before the accident, and also that they, or the defendant having such notice, neglected thereafter to replace the same."

Defendant Schwieger would not be relieved of liability if Adams or his agents or servants removed the barricade, and the offered instruction was erroneous because it did not cover such a condition. In effect, it relieved defendants of liability, under the conditions specified in the offered instruction, if the barricade was removed by anyone but the defendants.

Other assignments of error by defendant Schwieger have been considered, but we find no cause for disturbing the verdict and judgment as to him.