in evidence that the charter of the city provided that its bridges should be kept in repair. This duty was imposed in consideration of privileges granted, and it was also shown that the means of performing this duty were within the control of the corporation. Held, that the plaintiff was entitled to recover. Weightman v. The City of Washington, §§ 805, 806.

$ 785. In 1847 New York cut down a tree in its city hall park, leaving a stump six or eight inches high. This portion of the park was at the same time transformed into a portion of the sidewalk of the street. The stump remained until an accident was caused by it to plaintiff in 1857, and he sued the city authorities for negligence in leaving it there, and injuring him. Held, that he need not aver express notice to the city; that it was liable for negligence in not removing the stump; that it could not in defense set up that the portion of street wherein the stump was left was not a street, owing to its never having been regularly condemned to public use, nor that it was pledged to the city's creditors; and that the burden was upon the city to disprove negligence. Mayor v. Sheffield, §§ 807-809.

[NOTES.

See §§ 810-834.]

WATER COMPANY v. WARE.

(16 Wallace, 566-577. 1872.)

ERROR to U. S. Circuit Court, District of Minnesota.
Opinion by MR. JUSTICE CLIfford.

STATEMENT OF FACTS.- Injuries of a physical nature were received by the plaintiff through an obstruction in one of the public streets of the city of St. Paul, occasioned, as he alleges, by an employee of the corporation defendants, for whose acts they are responsible, and he instituted the present suit to recover compensation for those injuries. Service was made, and the defendants appeared, and the parties went to trial, and the verdict and judgment were for the plaintiff; and the defendants excepted and sued out this writ of

error.

Evidence was introduced by the plaintiff tending to show that where the accident occurred was a public street of the city; that the defendants entered into an engagement with the authorities of the city to make the necessary excavations in the streets, and to lay therein suitable pipes and complete the work as stipulated in a certain contract, to introduce a supply of water into the city for the use of the inhabitants, and that their employee or contractor was at work at the time making the excavations and laying the pipes; that the excavations in the street where the plaintiff was injured extended from the intersection of Eighth street to the intersection of Ninth street, and that the excavation, with the embankments made on the sides of the same by throwing out the earth, occupied the greater part of the width of the street, leaving on the east side little more than a passage-way of sufficient width for a onehorse carriage; that in making the excavation the workmen found it necessary to drill and blast, employing the steam drill for drilling, and blasting, as usual, with gunpowder; that the engine which propelled the drill was three feet in diameter and was elevated six or seven feet above the surface of the ground, and at the time of the accident to the plaintiff it stood near the intersection of Eighth street with the street in which the plaintiff was passing; that the plaintiff, with one other person, was riding in a carriage drawn by one horse, and having turned from Ninth street into the street where the accident occurred, the plaintiff, with the other person in the carriage, was driving along down the narrow passage-way, on the east side of the street, when the persons in charge of the engine suddenly, and without giving any notice or warning of their intention, set the engine and drill in operation, causing a loud noise which frightened the plaintiff's horse and caused him to shy and turn upon the sidewalk, overturning the carriage and injuring the plaintiff.

Due care, it is alleged, was used by the plaintiff, as when he left the intersecting street and passed into the street where the accident occurred the engine and drill were not in operation, nor was there any barricade or signal of any kind to indicate that there was any danger, or that any special precaution was necessary except what was suggested by the embankment and the narrowness of the street; and the evidence also tended to prove that neither the engine nor the drill was seen by the plaintiff or by the person in the carriage with him until the horse of the plaintiff was within ten feet of the place where the engine and drill were situated, and that it was at that moment that they were put in operation by those in charge of the work, and that one of the workmen ran into the street and threw up his arms as if to stop the horse, which had the effect to make him still more unmanageable.

Having introduced evidence tending to prove the foregoing facts the plaintiff rested, and the defendants moved the court to direct the jury to return a verdict in their favor upon the ground that the negligence proved, if any, as the cause of the injury to the plaintiff was the negligence of the contractor in charge of the work, or his servants or employees, and not of the defendants, or their servants or employees, which motion the court then and there denied, and remarked that "the action is brought upon the principle, which is well settled in the federal courts, that where a person or corporation is engaged in a work in the ordinary doing of which a nuisance necessarily occurs, the party is liable for any injury that may result to third parties from carelessness or negligence, even though the work may be done by a contractor;" and it makes no difference even if the party, in a case like the present, might sustain an action against the municipal corporation, as it is his right to seek his remedy against the party who created the nuisance or his immediate employees; to which ruling and decision the defendants then and there excepted.

Testimony was then introduced by the defendants tending to show that the injury mentioned in the declaration was not caused by any neglect or misconduct of the persons in charge of the work, but wholly by the reckless and negligent driving of the plaintiff, and the person with him in the carriage.

Prayers for instruction to the jury were presented by the defendants in substance and effect as follows: (1) That the court instruct the jury that upon the whole evidence they must find their verdict for the defendants. (2) That if the injury to the plaintiff was caused solely by the negligence or misconduct of the employees of the contractor in doing the work, then the defendants are not liable.

Both of those requests were refused, and the rulings of the court in that behalf, together with the refusal of the court, at the close of the plaintiff's case, to direct a verdict for the defendants, present the principal questions in the case for the decision of the court. Other prayers for instruction, involving the same principles, were also presented by the defendants, which were also refused, and the rulings are embraced in the exceptions.

§ 786. Duties of cities and towns as to highways.

Cities and towns are usually required by statute to keep their streets and highways safe and convenient for travelers, and if they neglect so to do, in a case where that duty is imposed by law, and suffer the same to get out of repair and defective, and any person as a traveler receives injury through such defect, either to his person or property, the delinquent corporation is responsible in damages to the injured party. Such a party, however, cannot maintain an action against the corporation grounded solely on the defect and want

of repair in the highway, but he must also allege and prove that the corporation had notice of the defect or want of repair and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the highway, as the duty to repair in such cases is a duty owed to the public, and consequently if one person might sue for his proportion of the damages for the non-performance of the duty, then every other member of the community would have the same right of action, which would be ruinous to the corporation, and for that reason it was held at common law that no action founded merely on the neglect to repair would lie. Weightman v. Washington, 1 Black, 52 (§§ 805-6, infra).

Nor will an action lie in such a case at the present time; but it is settled law, by the highest authority of the country from which the common law is derived, that where it appears that the corporation is under a legal obligation to repair the way in question, and that such obligation is a matter of general and public concern, and also that the place in question is out of repair and that the plaintiff has sustained some peculiar damage in his person or property by means of such defect or want of repair, that the corporation, if the means of performing the duty to make the repairs are within their control, is liable to compensate the injured party for the injury which he suffered from their neglect. Henly v. The Mayor, etc., of Lyme, 5 Bing., 91; The Mayor v. Henly, 3 Barn. & Ad., 77; Mayor, etc., of Lyme-Regis v. Henly, 2 Cl. & Fin., 331. Since the decision in Mayor of Lyme-Regis v. Henly, the case last referred to, many decisions to the same effect have been made by the state courts in this country approving that rule and applying it in all similar controversies. Hutson v. New York, 5 Sand., 304; Erie v. Schwingle, 22 Penn. St., 384; Storrs v. Utica, 17 N. Y., 104; Conrad v. Trustees of Ithaca, 16 id., 159; Browning v. Springfield, 17 Ill., 145; Lloyd v. Mayor, 1 Seld., 369.

§ 787. Liability of employers of contractors for the latter's torts.

Grant all that and still the defendants deny that the rule established by those authorities furnishes any support to the rulings of the circuit court, as they, the defendants, were mere contractors to make the excavations and lay the pipes, and they insist that the persons responsible to the plaintiff, if any, are the persons whom they employed to do the work and who were in charge of it at the time the plaintiff was injured, and they deny that they, in any view of the case, can be held answerable for the neglect and carelessness of those who had contracted with them to make the excavations and lay the pipes, and who had charge of the engine and steam drill, the operation of which frightened the horse of the plaintiff.

Concede that proposition and it would follow that the rulings in question are incorrect; but the evidence exhibited in the record shows that the defendants agreed with the municipal authorities to protect all persons against damages by reason of the excavations made by them preparatory to laying the pipes, and to keep the work properly guarded by day and night, and to be responsible for all damages which "may occur by reason of neglect of their employees in the premises," and that the streets should not be unnecessarily obstructed or incumbered in doing the work. Such an agreement would not acquit the municipality of an obligation, otherwise attaching, to keep the streets safe and convenient for travelers; but it may well be held that a party injured through a defect or want of repair in such a street, occasioned by the neglect or carelessness of such a contractor in doing the work, or of those for whose acts he is responsible, may, at his election, sue the contractor for redress

or pursue his remedy against the municipality, as it is clear that the contractor, in case of a recovery against the latter, would be answerable to the municipality as stipulated in his agreement. Improvements of the kind, such as making excavations and laying pipes for gas or for sewers, are made by municipal corporations, under circumstances where the corporation is immediately responsible for the defect or want of repair in the street, without any other party being answerable over to them for any damages they may have to pay to a traveler who may be injured through such a defect or want of repair, as where they appoint their own superintendent and the work is done by their order and directions. Other cases arise where improvements are constructed by contractors, in which the municipality is not responsible at all, as where the improvement is of such a character that a prudent man would not find it necessary to incumber or obstruct the street in any respect or for any purpose, as in that case it would be clear that the defect or want of repair which occasioned the injury was solely the result of neglect and carelessness on the part of the contractor, and not of any culpable fault of the officers of the municipality Contractors with such a corporation for such a purpose may or may not be responsible to a third party, in a case like the present, according to the circumstances; but it is not necessary to enter much into the discussion of that topic in this case, as the evidence shows that the defendants agreed to become responsible for all damages which may occur by reason of neglect of their employees in the premises. Tested by these considerations it is quite clear that the case must be viewed just as it would be if the work had been done by the defendants, and not by the subcontractors, or as if the work had in all respects been done under the directions of the defendants as the immediate contractors with the municipal corporation.

Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party. Robbins v. Chicago, 4 Wall., 679 ($$ 796-99, infra). Exactly the same view was advanced by this court when that case was brought here by the first writ of error, in which the court said. that if the nuisance necessarily occurs in the ordinary mode of doing the work the occupant or owner is liable, but if it is from the negligence of the contractor or his servants, then he should alone be responsible. Chicago v. Robbins, 2 Black, 428 (§§ 793–95, infra). Common justice requires the enforcement of that rule, as if the contractor does the thing which he is employed to do the employer is as responsible for the thing as if he had done it himself; but if the act which is the subject of complaint is purely collateral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the work to be done. Hole v. R. R. Co., 6 Hurlst. & N., 497. It would be monstrous, said Lord Campbell, if a party causing another to do a thing were exempted from liability for the act merely because there was a contract between him and the person immediately causing the act to be done, which may be accepted as correct if applied in a case where the work contracted to be done will necessarily, in its progress, render the street unsafe and inconvenient for public travel. Ellis v. Gas Cons. Co., 2 Ell. & B., 770; Newton v. Ellis, 5 id.,

124. More than one party may be liable in such a case; nor can one who employs another to make such an excavation relieve himself from liability for such damages as those involved in the case before the court by any stipulation with his employee, as both the person who procured the nuisance to be made and the immediate author of it are liable. Storrs v. Utica, 17 N. Y., 108; Creed v. Hartman, 29 id., 591; Same v. Case, 8 Bosw., 123; Congreve v. Smith, 18 N. Y., 79; Same v. Morgan, 18 id., 84; Mayor v. Furze, 3 Hill, 616; Milford v. Holbrook, 9 Allen, 21.

Apply these rules to the case before the court, and it is clear that they are sufficient to dispose of all the exceptions, and to show that there is no error in the record. Judgment affirmed.

MERRILL v. CITY OF PORTLAND.

(Circuit Court for Maine: 4 Clifford, 138–147. 1870.)

Opinion by CLIFFORD, J.

STATEMENT OF FACTS.- Travelers have a right to travel by night as well as by day, and towns are required by law in this state to keep their highways, townways and streets in such repair that they shall be safe and convenient for that purpose. Compensation for any bodily injury received by a traveler, through any defect or want of repair in any highway, town way or street, may be recovered of the town bound by law to keep the same in repair; provided it appears that the town had reasonable notice of the defect or want of repair, and that the plaintiff was, at the time, in the exercise of ordinary care. R. S., 227.

Me.

Severe bodily injuries were received by the plaintiff on the 16th of August, 1866, while walking up Congress street in this city, by the falling of a wooden awning attached to the front of the store numbered 366, occupied at the time by Walker & Son, doing business as fruit dealers and confectioners. When the accident occurred the plaintiff was on the sidewalk on the southeasterly side of the street, and the evidence showed to the satisfaction of the court and jury that she was in the exercise of ordinary care. Although the awning was constructed of wood, still the evidence showed that the frame was well and strongly built of sound timbers, supported by four rafters attached to a joist, spiked securely to the front of the building, and by three iron rods or braces, secured to the building above the frame of the awning by screws, and connected with the front of the frame which supported the awning by screwbolts running through the plate of the awning frame. Damages were claimed by the plaintiff of the defendants upon the ground that the awning, as constructed, rendered the street defective, and, being unable to adjust the controversy with the proper authorities, she brought an action of trespass on the case against the defendants in the circuit court for this district. Service was duly made, and the defendants appeared and pleaded the general issue, and upon that issue the parties at the last term went to trial, and under the instructions of the court, the district judge presiding, the jury returned a verdict for the plaintiff, assessing the damages in the sum of $5,000. Dissatisfied with the verdict, the defendants filed a motion to set it aside and for a new trial, upon the following grounds:

1. Because the verdict is against the evidence and the weight of the evidence. 2. Because the verdict is against law. 3. Because it is manifestly against the instructions of the presiding justice.