Burger v. Philadelphia

Opinion by

Mr. Justice Fell,

The' fifth assignment is to the refusal of the court to direct a verdict for the defendant, and it gives rise to the only question to.be considered.. 'The plaintiff was injured by the sinking of the unpaved surface of a refilled trench on which she1 stepped at the crossing of a street. The negligence alleged was that in refilling the trench the earth had not been properly packed. Her testimony made out a prima facie case against the city. The defense was (1) that the work was in the hands of a contractor and had not been completed; (2) that the contractor was an independent contractor over whose method of doing the work the city exercised no supervision or control. As to the first ground of defense the testimony was meager, and whether the work had been completed . and turned over to the city was left mainly to inference, but there was enough testimony on the subject to raise a distinct issue of fact. The work of constructing the sewer inlet had been completed nearly three weeks before; the street had' been thrown Open during this time to public use, and the contractor had left it and gone to other work. The surface Of the trench had not been repaved, and the contention of the city that the work had-not been completed was based 'upon that fact alone. Gen- ■ erally under the contract it was the' duty of the contractor to repave the part of the street which he had torn up, but in this matter as in all others he was subject absolutely to the direction of the chief engineer. He was not, as will be shown hereafter, to do a particular piece of work for a fixed price, but to do such work as was directed at a price agreed upon for each particular kind of work required. The city inspector testified that the work had been completed nineteen days before the accident happened, and in explaining why he spoke of it as completed while the surface remained unpaved he said that the whole street had to be paved. The paving of the whole street was not the work of the contractor, and it may fairly be inferred from the testimony that the city did not direct the paving over of the trench for the reason that it intended to repave the whole surface of the street. If this was the case the jury might well find that the work had been completed by the contractor and accepted by the city.

The contract under which the work was done was a contract to furnish the material and labor for the reconstruction of sewer inlets in any part of the city of Philadelphia during the year 1896 as required by the department of public works, and subject to its direction and approval. For a part of the work a fixed price was to be paid, as for stone, brick or iron inlets of different patterns, for iron gratings, manholes, terra-cotta pipe, etc., but in most cases the work was to be paid for at a fixed price per foot or yard as excavating, masonry, curving, paving, etc. No particular work was specified, and none might be ordered. When ordered the work was to be done in the presence of an inspector, and the department reserved the right of absolute control and direction. There was no evidence that the department exercised any right except that of supervision, or that the contractor received any directions from any one acting for the city.

Whether in view of the exceptional character of this contract the city is relieved of liability for the negligence of its contractor under the ruling in Painter v. Pittsburg, 46 Pa. 213, and the line of cases which have followed it, need not be considered. If there was negligence in the manner of filling the trench the city through its agents appointed to supervise and inspect the work had notice of it; and there was ample evidence to require the submission to the jury of the question whether having notice of the defects in the work it had accepted it from the contractor and opened the street to public use.

The judgment is affirmed.