Kampmann v. Rothwell

Mrs. Kampmann owned a home in San Antonio situated at the southeast corner of 4th Street and Avenue E. Sometime anterior to the date of Rothwell's injury Mrs. Kampmann employed Fitzgerald Basille upon terms which made them independent contractors to build a sidewalk in front of her property and they did construct it in accordance with and under the said contract. Sometime thereafter a break appeared in the sidewalk and Mrs. Kampmann called upon the contractors, Fitzgerald Basille, to repair it, claiming that they should do so under the contract for its construction, and refused to pay them anything for it and did not pay them anything for the repair. Fitzgerald Basille denied their obligation to repair the work and claimed that the break had occurred by reason of Mrs. Kampmann turning water upon it; but they finally did, without any further contract, proceed to make the repairs of the walk at the place pointed out. Mrs. Kampmann gave no directions as to how the work should be done, or anything connected with it, except to point out the place where it was to be done. The contractors took out a section of the sidewalk, about six feet long, and replaced it with fresh cement and concrete, and, in order to protect it from injury by persons walking over it, laid planks lengthwise upon it. The walk was on the side of a public street running in front of Mrs. Kampmann's property, which was a public highway in the city of San Antonio. There was no guard rail or other protection placed around the said sidewalk to prevent persons from walking upon it, nor was there any light or signal placed there to notify pedestrians of the existence of the planks on the sidewalk.

Rothwell was passing along the sidewalk at night and not observing the obstruction upon the sidewalk, fell over the ends of the planks, inflicting upon himself serious injury, which, for the purposes of this opinion, are not necessary to describe.

Rothwell brought suit against Mrs. Kampmann for damages on account of the said injuries and she pleaded over against Fitzgerald Basille to make them responsible for any damage that she might have to pay. The case was tried before a jury and the court instructed the jury to return a verdict in favor of Fitzgerald Basille, and submitted the case upon the charge against Mrs. Kampmann, whereupon the jury returned a verdict as directed in favor of Fitzgerald Basille, and also a verdict against Mrs. Kampmann in favor of the plaintiffs.

Setting aside the issue presented by the parties as to whether the ordinance of the city of San Antonio applied to Mrs. Kampmann with regard to this work, and also assuming that Fitzgerald Basille were independent contractors, we must hold that Mrs. Kampmann was liable to Rothwell for the injury caused by the negligence of the contractors in failing to place a signal or guard at the place where Mrs. Kampmann's sidewalk was repaired, whereby Rothwell, in passing upon the sidewalk, a public highway, received his injury. The rule of law applicable to this case is aptly stated by the Supreme Court of the United States in the case of Robbins v. Chicago City, 4 Wall., 678. That court said: "The party contracting for the work was liable . . . where the work to be done necessarily constituted an obstruction or defect in the street or highway which rendered it dangerous as a way for travel and transportation, unless properly guarded or shut out from public use; that in such cases the principal for whom the work was done could not defeat the just claim . . . of the injured party by proving that the work which constituted the obstruction or defect was done by an independent contractor. . . . Where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party." (Chicago v. Robbins, 2 Black, 426; Penny v. Wimbleton Dist. (1898), 2 Q.B. Div., 212; Chesapeake A.C. Co. v. Commissioners, 57 Md. 201, 40 Am. Rep., 430; Covington C. Bridge Co. v. Steinbrock, 61 Ohio St. 215.)

Fitzgerald Basille being independent contractors, that is, doing the work without supervision on the part of Mrs. Kampmann, were required to do whatever the law required Mrs. Kampmann to do in repairing that part of the sidewalk, and according to the testimony, their work was not complete until they had put the protection of the planks over the new cement to protect it from impressions which would be made by those who might walk over it. To state the facts shows that the planks as they are described, nailed to a cross piece at each end and extending for six feet along the sidewalk, necessarily obstructed the travel by footmen upon that sidewalk, and thus it is brought within the rule laid down as quoted above. It is a matter of such common knowledge as to require the contractors to take notice of it that the sidewalk would be used by pedestrians at night and that one who had no notice of the existence of such an obstruction would be liable to stumble upon it just as Rothwell did and thereby sustain an injury. It becomes the duty therefore of the contractors to guard against such an event by placing guards around the work so as to prevent persons passing over the sidewalk from coming in contact with the obstruction, or by placing lights near by so as to notify persons who might be passing of the existence of such obstruction. Nothing of this kind was done in this instance, therefore the liability of Mrs. Kampmann and of the contractors is beyond question.

Whether Fitzgerald Basille were independent contractors or were servants of Mrs. Kampmann in doing the work, they are liable for any sum that Mrs. Kampmann may be compelled to pay on account of injuries to the plaintiff occasioned by the negligence of Fitzgerald Basille in performing the work which they had engaged to do. When they undertook to repair the sidewalk without any supervision or direction on the part of Mrs. Kampmann it was their duty to use ordinary care to guard all persons who might be using the sidewalk from injury. As we have already stated, if in the performance of their duty they placed an obstruction in the street and that obstruction was of such a character as to be dangerous to persons passing by unless guarded from their use by proper railing or other protection, or that they should have proper notice of its existence, their contract to repair placed upon them the duty to observe the rights of the public in the sidewalk just the same as it rested upon Mrs. Kampmann. (Robbins v. Chicago, 4 Wall., 678; 20 Am. Eng. Ency., 51; Smith v. Foran, 43 Conn. 244, 21 Am. Rep., 647; Zulkee v. Wing,20 Wis. 408, 91 Am. Dec., 425.)

It is objected by counsel for Fitzgerald Basille that there is neither pleading nor evidence to show any liability on their part to Mrs. Kampmann for what she may be compelled to pay. The plea of Mrs. Kampmann against Fitzgerald Basille is somewhat meager in its allegation of fact but there was no exception to the plea presented to the court, nor was there any objection to the evidence when offered. The pleading is sufficient to require the court to submit the issue to the jury.

It is ordered that the judgment in favor of I.N. Rothwell against Elizabeth Kampmann be affirmed, and that Rothwell recover all costs of all the courts against Elizabeth S. Kampmann. It is further ordered that the judgments of the District Court and Court of Civil Appeals in favor of Fitzgerald Basille against Elizabeth Kampmann be reversed and that Elizabeth S. Kampmann recover from Fitzgerald Basille the same sum that Rothwell recovered against her with all costs.

Affirmed in part. Reversed and rendered in part.