3a

4

trench; by the manner in which materials taken from excavations were piled in the street; by defects in temporary structures designed for the Dow v. Oroville (1913) 22 Cal. App. 215, 134 Pac. 197 (injury caused by unguarded sewer trench); Martin v. Shea (1920) 182 Cal. 130, 187 Pac. 23 (similar injury); Owens v. Georgia L. Ins. Co. (1915) 165 Ky. 507, 177 S. W. 294 (similar injury); Williams v. Sager (1911) 165 Mich. 635, 131 N. W. 103 (pedestrian stepped into unguarded excavation made by paving contractor); Ball Ball v. Independence (1890) 41 Mo. App. 469 (excavation made in sidewalk for cellar was left unguarded); Williamson v. Mullins (1915) - Mo. App. —, 180 S. W. 395 (person who had just alighted from street car fell into unguarded sewer trench); Blake v. Ferris (1851) 5 N. Y. 48, 55 Am. Dec. 304 (injury caused to traveler by unguarded sewer trench); Gaebler v. Gallo (1909) 131 App. Div. 935, 116 N. Y. Supp. 1136, affirmed in (1910) 198 N. Y. 344, 91 N. E. 787 (passenger on street car fell, after alighting from it, into unguarded trench); Cleveland Trinidad Pav. Co. v. Mitchell (1914) 42 Okla. 49, 140 Pac. 416 (pedestrian injured by stepping into excavation); Jenkins Montgomery (1911) 69 W. Va. 795, 72 S. E. 1087, 1 N. C. C. A. 58 (plaintiff fell into unguarded ditch).

V.

Sa Brown v. German Rock Asphalt Co. (1923) 236 N. Y. 271, 140 N. E. 695, reversing (1922) 204 App. Div. 856, 197 N. Y. Supp. 901. The court said: "Where one under a contract with a municipal corporation has made an excavation in a public street or highway and refilled the same, it is his duty to anticipate the result upon it of a rainfall, and to see that during and after a rain it is in a proper and safe condition, or to take such measures of prudent forethought as will protect the public passing by from danger. Johnson v. Friel (1872) 50 N. Y. 679; Allen v. Buffalo, R. & P. R. Co. (1897) 151 N. Y. 434, 45 N. E. 845, 1 Am. Neg. Rep. 150. The street did not remain as the defendant left it. At the time the plaintiff fell a hole 3 to 5 inches deep had been worn in the covering or gravel. . . . The defendant having opened the street, dug the trench and refilled it, was charged with the duty of restoring it to a reasonably safe condition. As its con

accommodation of the public; 5 by negligence with regard to the use of a protective barricade; and by the operation of machinery."

tract was not complete until it had resurfaced the trench it still had power and the right of supervision over it. Its work was not complete. Under these circumstances it was called upon to exercise reasonable care to keep the highway reasonably safe until the asphalt had been replaced, or the street repaved. Whether it exercised such care was a question of fact for the jury upon the evidence as I have outlined it, and it was error to dismiss the complaint."

4 Jacobs v. F. V. Smith Contracting Co. (1908; Sup. Ct. App. T.) 113 N. Y. Supp. 531 (nonsuit improperly granted where a cab was overturned by a large rock which rolled down under the wheel from an embankment composed of the materials taken out of an excavation).

5 Schiverea v. Brooklyn Heights R. Co. (1903) 89 App. Div. 340, 85 N. Y. Supp. 902 (pedestrian tripped over cord stretched across temporary footbridge laid over excavation for subway); Oliver v. Pettaconsett Constr. Co. (1914) 36 R. I. 477, 90 Atl. 764 (pedestrian stumbled in the dark over a plank left on a path maintained by a sewer contractor, while the street was impassable, on adjacent land, where he kept various materials); Hoyt v. Independent Asphalt Pav. Co. (1909) 52 Wash. 672, 101 Pac. 367 (plaintiff, when alighting from a street car, was thrown down by the tilting of a loose plank in a platform laid near the track by a paving contractor).

6 Weber v. Union Development & Constr. Co. (1907) 118 La. 77, 42 So. 652, 12 Ann. Cas. 1012 (pedestrian tripped over fallen barricade).

7 Law v. Bryant Asphaltic Pav. Co. (1916) 175 Iowa, 747, 7 A.L.R. 1189, 157 N. W. 175 (pedestrian struck by descending beam of hopper of concrete mixer used by paving contractor); Igo v. Cambridge (1911) 208 Mass. 571, 95 N. E. 557 (horses drawing a wagon shied when an engine used by a contractor engaged in repairing water pipes was started, the result being that a wheel of the wagon dropped into an excavation and the driver was thrown off).

Under such circumstances as those specified above, it is ordinarily a con.dition precedent to recovery that the highway in question should have been open to travel at the time when the injury complained of was received.7a

Actions have also been held to be

7a In Jones v. Collins (1901) 177 Mass. 444, 59 N. E. 64, the right to recover was denied on grounds thus stated: "A contractor employed by a municipality to do the work of constructing a highway is its agent. When, as in the present case, the order for laying out and construction includes what has been an existing way, the whole surface of which, as well as that of the other land included in the laying out, is to be torn up and wrought anew, if reasonable notice is given to the public by signs and barriers that there is no passing and that the way is not open to travel, this suspends the statutory liability. It also is sufficient to free the town or city and its contractor from all obligation to keep the way safe for the use of travelers until it has been completed in accordance with the order, or opened for use. In the meantime it is not negligence for the municipality or its agents to leave in the surface of the street such projections as that over which the plaintiff fell, and it is not an invitation to use the street, to leave at the entrances to it openings through which travelers can pass, if at the same time there are exposed to view such signs and barriers as are fitted to convey to the public notice that the street is, for the time being, closed for travel. It is not essential that such notice shall be brought to the actual knowledge of all persons; and it is immaterial to the duty of the defendants to the plaintiff, in the present case, whether she had actual knowledge that the street had been closed for travel. The barriers and signs which were in fact up, and had been so for many days, were enough to fix the right of the defendants to control the place without being under obligation to keep it in any condition other than that resulting from the legitimate prosecution of the work of construction in accordance with the order under which they worked."

Jones v. Bird (1822) 5 Barn. & Ald. 837, 106 Eng. Reprint, 1397, 1 Dowl. & R. 497, 24 Revised Reports, 579 (walls of houses undermined owing to unskil

9

maintainable against contractors in cases where the injuries complained of were caused by excavations so carried out as to damage the property of an abutter; 8 by the manner in which blasting operations were carried on; by the storage of explosives ful manner in which a sewer trench was excavated); Clothier v. Webster (1862) 12 C. B. N. S. 790, 142 Eng. Reprint, 1353, 31 L. J. C. P. N. S. 216, 9 Jur. N. S. 231, 6 L. T. N. S. 461, 10 Week. Rep. 624 (work of constructing sewer so carried on as to damage a baker's oven); London General Omnibus Co. v. Tilbury Contracting & Dredging Co. (1907) 71 J. P. (Eng.) 534 (subsidence of land caused by excavation of sewer trench); Moraski v. T. A. Gillespie Co. (1913) 239 Mass. 44, 131 N. E. 441 (house settled as a result of the construction of a tunnel); Susswein v. Bradley Contracting Co. (1918) 184 App. Div. 852, 172 N. Y. Supp. 652 (damage caused to buildings of abutter by excavation made for subway); Von Lengerke v. New York (1912) 150 App. Div. 98, 134 N. Y. Supp. 832, affirmed without opinion in (1914) 211 N. Y. 558, 105 N. E. 1101 (tunnel for sewer connection excavated so carelessly as to cause a water main to break, the result being that the plaintiff's premises were flooded).

In Moraski v. T. A. Gillespie Co. (1921) 239 Mass. 44, 131 N. E. 441, where the plaintiff's building had subsided as a result of the excavation of a subway tunnel, the direction of a verdict for the defendant was held to be improper, for the reason that the jury would have been entitled to find that the building should have been supported.

9 Wheeler v. Norton (1904) 92 App. Div. 368, 86 N. Y. Supp. 1095 (subway contractor held liable in trespass, without proof of negligence, for breaking a water pipe by the concussion of a blast, and so causing adjacent premises to be flooded); Turner v. DegnonMcLean Contracting Co. (1904) 99 App. Div. 135, 90 N. Y. Supp. 948, affirmed in (1906) 184 N. Y. 525, 76 N. E. 1111 (plaintiff, while using a street, was struck by a stone ejected by a blast set off by the defendant in the course of the work of constructing an underground railway); Seattle Lighting Co. v. Hawley (1909) 54 Wash. 137, 103 Pac. 6 (gas pipe of

18

within the limits of a street; 10 by the improper handling of materials taken from excavations,11 of house drains,12 and trees planted on a of gas pipes, sidewalk; 14 by depositing materials so close to a railroad track as to endanger the safety of men on passing trains; 15 and by a trespass on the land of an abutter.16

abutter was damaged by explosions of dynamite used in grading street).

In Gerber v. Kansas City (1924) 304 Mo. 157, 263 S. W. 432, where a boy was injured by the explosion of the cap attached to a fuse which he had picked up on a heap of dirt thrown out by a blast set off during the work of constructing a sewer, the contractor was held liable on the ground of negligence in allowing the fuse to remain in the street.

10 Holman v. Clark (1917) 272 Mo. 266, 198 S. W. 868 (dynamite exploded and injured buildings).

11 Gasof v. Standard Ice Co. (1913) 71 Wash. 537, 129 Pac. 101 (rock allowed to roll down upon a workman employed by an abutter).

12 Bennett v. Mt. Vernon (1904) 124 Iowa, 537, 100 N. W. 349 (contractor for laying water pipes disconnected tiling of house drain so carelessly that water flowed back into the cellar of the house).

13 Brady v. New York (1912) 149 App. Div. 816, 134 N. Y. Supp. 305 (child killed when explosion of escaped gas caused sides of a sewer to collapse and engulf the sidewalk).

14 Morris v. Salt Lake City (1909) 35 Utah, 474, 101 Pac. 373 (contractor for construction of sidewalk cut the roots of trees and so weakened them that they fell against the dwelling of an abutter).

15 Cummings v. C. W. Noble Co. (1910) 143 Wis. 175, 126 N. W. 664.

16 Kinser v. Dewitt (1893) 7 Ind. App. 597, 34 N. E. 1014 (sewer contractor liable for trespass on land of abutter).

1 Grayson v. Ellerman Line [1920] A. C. (Eng.) 466, 89 L. J. K. B. N. S. 924, 123 L. T. N. S. 65, 36 Times L. R. 295, 25 Com. Cas. 190-H. L., affirming [1919] 2 K. B. 514, 88 L. J. K. B. N. S. 904, 121 L. T. N. S. 508, 35 Times L. R. 492, 24 Com. Cas. 213-C. A. (cargo ignited by hot rivet dropped through open hatchway by servant of shiprepairing company); company); Casement V. Brown (1893) 148 U. S. 615, 37 L. ed.

$10. of work of other descriptions.

The liability of contractors for injuries resulting from the following descriptions of work has been affirmed:

(a) Construction work not coming under any of heads reviewed in the preceding sections.1

582, 13 Sup. Ct. Rep. 672 (barges stuck against pier of bridge, owing to failure of contractor to replace buoy and light which had been carried away by flood); Smith v. Day (1900) 49 L.R.A. 108, 40 C. C. A. 366, 100 Fed. 244 (passenger on river steamboat injured by rock thrown up by explosives used for excavating a lock); Wilson v. Chicago (1890) 42 Fed. 506 (bridge contractor and towing company held to be liable for damages sustained by a ship which collided with the abutment of a bridge, owing to the combined effect of the contractor's negligence in removing the fender piles, and the unskilfulness of the crews of the tugs by which the ship was being towed); Consolidated Coal Co. v. Knickerbocker Towage Co. (1912) 200 Fed. 840 (injuries caused to ship by obstructions left in channel by one of the defendants, a dredging company); State use of Boddie v. Baltimore & O. R. Co. (1918) 254 Fed. 720, modified on another point in (1919) 262 Fed. 11 (stevedore on barge was swept off by slack cable attached to a dredge); Stanton-White Dredging Co. v. Braden (1919) 137 Ark. 127, 208 S. W. 598 (land flooded, owing to negligence of contractor engaged in excavating drainage ditch); Bellegarde v. San Francisco Bridge Co. (1891) 90 Cal. 179, 27 Pac. 20 (carload of rock and earth deposited by servants of a bridge contractor in such a manner as to force from their position the piles supporting plaintiff's house); Green v. Berge (1894) 105 Cal. 52, 45 Am. St. Rep. 25, 38 Pac. 539 (soil of plaintiff's lot collapsed, owing to removal of lateral support consequent upon grading of adjacent lot); Teller v. Bay & River Dredging Co. (1907) 151 Cal. 209, 12 L.R.A. (N.S.) 267, 90 Pac. 942. 12 Ann. Cas. 779 (flooding of land caused by negligence of dredging contractor); Quenrud V. Moore-Sieg Constr. Co. (1921) 191 Iowa, 580, 181 N. W. 16 (traction engine, while pulling ditching machine operated by municipal contractor, suddenly blew off steam and caused the horse of a pass

(b) Delivery of goods to premises abutting on highway.2

(c) Transportation of goods.3

V.

ing traveler to shy); Walters American Bridge Co. (1912) 234 Pa. 11, 82 Atl. 1103, 1 N. C. C. A. 374 (railing left unsecured while bridge was being reconstructed gave way when person crossing the bridge leaned against it, so that he fell into the river); Nautilus S. S. Co. v. Henderson [1919] S. C. 605, 56 Scot. L. R. 545, [1919] 2 Scot. L. T. 104-Ct. of Sess. (cargo ignited by sparks which proceeded from an oxy-acetylene burner which ship repairers were using for the purpose of removing a ventilator); Hawkins v. McGuigan (1912) 3 Ont. Week. N. 564, 3 D. L. R. 307-Div. Ct. (contractor with city for erection of bridge held liable for injury caused to plaintiff by falling on an ice-covered bank of earth deposited on an approach to a sidewalk); Brunet v. Beauchamp (1915) Rap. Jud. Quebec 47 C. S. 409 (access to plaintiff's premises obstructed by contractor engaged in building an aqueduct).

In Hepburn v. M'Dowell (1828) 17 Serg. & R. (Pa.) 385, 17 Am. Dec. 677, where the building of a dam threw water back upon the plaintiff's land, the builder and his employer were held to be jointly liable for the damage caused. Notice to the contractor concerning the plaintiff's rights was declared to be imputable to the employer. The court said: "If notice be necessary to persons who are engaged in a work with a full knowledge, or who may have knowledge, that it will prove a nuisance, notice to one is notice to all. They are engaged in a joint act; the consequences are visited on all; they are affected by the acts of all."

2 Scheafer v. Iron City Sand Co. (1906) 31 Pa. Super. Ct. 476 (pedestrian fell into coalhole left open for the delivery of materials required for repair of house). Compare also the following cases, which affirm the right of a traveler to hold a vendor of goods liable for the negligence of his servant in leaving open and unguarded the opening through which the goods were delivered: Whiteley v. Pepper (1877) L. R. 2 Q. B. Div. (Eng.) 276, 46 L. J. Q. B. N. S. 436, 36 L. T. N. S. 588, 25 Week. Rep. 607 (coalhole); Owens v. Harvard Brewing Co. (1907) 194 Mass. 498, 80 N. E. 509 (bulkhead removed for delivery of barrels of beer);

(d) The operation of motor vehicles for various purposes.1

French v. Boston Coal Co. (1907) 195 Mass. 334, 11 L.R.A. (N.S.) 993, 122 Am. St. Rep. 257, 81 N. E. 265 (coalhole); Manney v. Curtis (1906) 113 App. Div. 421, 99 N. Y. Supp. 288 (coalhole).

In Keevil v. Ponsford (1915) - Tex. Civ. App. 173 S. W. 518, where a policeman on a motorcycle collided with a loaded wagon left unlighted in a street by the employees of a company supplying brick for a building, the direction of a verdict for the defendant was held error.

3 In Talley v. Drumheller (1923) 135 Va. 186, 115 S. E. 517, where an action of detinue was brought to recover the possession of certain rails which had been used for a tramroad on plaintiffs' land, it appeared that one Jones had employed the Drumhellers to transport the rails, at a specified price per ton, to a railroad, and there load them on the cars for shipment to a designated place. The uncontradicted evidence was that they had taken actual possession of the rails and wrongfully carried them from the plaintiffs' lands and placed them upon their lot. Held, that they were proper parties to the action, and that it had been improperly dismissed on a plea in abatement. The court said: "Their possession, either as bailees or otherwise, must necessarily continue until the rails are loaded on the cars. . . Besides, they had a right to a lien on the rails to secure their claim for services rendered in taking up and hauling same."

* In Meyers v. Tri-State Auto. Co. (1913) 121 Minn. 68, 44 L.R.A. (N.S.) 113, 140 N. W. 184, a dealer in automobiles was held liable for injuries caused to a person to whom he let one of them, by the negligence of the chauffeur.

In Scheer v. Melville (1924) 279 Pa. 401, 123 Atl. 853, the facts involved were thus stated by the court: Defendant, a truckman for hire, agreed to haul certain rubber for plaintiff, and to supply a motor truck and driver to do this; plaintiff to go along solely for the purpose of pointing out the material to be hauled. He called at defendant's garage in accordance with this arrangement; defendant's foreman, who was in charge, selected the