Opinion
No. 31037.
March 12, 1934. Suggestion of Error Overruled April 9, 1934.
1. NEGLIGENCE.
Generally, when contractor has turned over work and it has been accepted by proprietor, contractor incurs no further liability to third parties arising from condition of work.
2. NEGLIGENCE.
Where seller delivered bricks and stacked them without structural defect on sidewalk on college campus as directed by superintendent of college grounds, seller held not liable for injuries sustained by pedestrian who stumbled over bricks at night.
APPEAL from Circuit Court of Hinds County.
Ross R. Barnett and P.Z. Jones, both of Jackson, for appellant.
The authorities are entirely agreed upon the proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have his premises, in a reasonably safe condition, and to give warning of latent or concealed perils.
20 R.C.L. 55, sec. 51; R.C.L. Perm. Sup., p. 4813; 20 R.C.L. 65, sec. 57; Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213, 48 A.S.R. 547, 25 L.R.A. 686; 20 A.L.R. 202; Thompson's Commentaries on Negligence, secs. 968, 1012, 1013 and 1014; Clark v. Chambers, 3 Q.B.B. Div. 327.
The trial court was in error in ruling that there was no liability on Mississippi College and, therefore, there could be none on the Planters' Lumber Company.
1 Thompson's Commentaries on the Law of Negligence, sec. 6; Corby v. Hill, 4 C.B. (N.S.) 556, 140 Eng. Rep. 1209, 93 Eng. Com. L.R. 554; Bennett v. Louisville N.R.R. Co., 102 U.S. 577, 26 L.Ed. 235; 11 Rose Notes on U.S. Rep., p. 149; 2 Rose, 1932 Sup., p. 1048; Crane Elevator Co. v. Lippert, 63 Fed. 942, 945; Wilbourne v. Charleston Cooperage Co., 90 So. 9, subheads 1 and 2, at page 10; Kress v. Markline, 77 So. 858, 117 Miss. 37, Ann. Cas. 1918E, 310; John Clark et ux v. Rd. I. Elec. Lighting Co., 16 R.I. 463; Hanson v. Spokane Valley Land Water Co., 107 P. 863; Thompson's Commentaries on Negligence, sec. 1012; Wharton's Law of Negligence, sec. 349; 29 Cyc. 466.
Butler Snow, of Jackson, for appellee.
It may happen that the employer knows or should know of circumstances of which the contractor is exclusively ignorant and which make the work or the manner in which it was directed to be done unreasonably dangerous. In such a case the contractor would not be subject to liability since he, as a reasonable man, would not realize the risk involved in his conduct. On the other hand, the employer, as a reasonable man, should realize the danger and is negligent in directing the work to be done.
American Law Institute Restatement of the Law of Torts, Tentative Draft No. 6, p. 14; Primmins v. United Engineering Construction Co., 96 N.Y. Supp. 1032; 39 C.J. 1312.
After a contractor has turned over the work and it has been accepted by the proprietor, the contractor incurs no further liability to third persons by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in a defective condition, is shifted to the proprietor.
City of Vicksburg v. Holmes, 106 Miss. 234, 66 So. 984.
There was no inducement whatever on the part of the college authorities to the public to use its campus, but at most a mere passive acquiescence therein.
Illinois Central R.R. Co. v. Arnola, 78 Miss. 787; Y. M.V.R.R. v. Cox, 132 Miss. 564.
Argued orally by Ross R. Barnett, for appellant, and by C.B. Snow, for appellee.
The appellant sued the appellee for damages for personal injuries sustained by him because of alleged negligence of the appellee. At the close of the evidence, the court below sustained a motion for the exclusion thereof, directed the jury to return a verdict for the appellee, and there was a judgment accordingly. The evidence, in substance, is as follows:
Mississippi College owns and operates a male college at Clinton, Mississippi, with an extensive campus on which its buildings are situated, and through and around which are several concrete walks. This campus abuts on a public road, and one of its concrete walks extends to and connects with this road. This walk is used by the students and other persons entering the college grounds, and for a number of years with the knowledge of, and without objection by, the college, by persons living beyond the campus for the purpose of reaching their homes from the road with which the walk connects, one of whom was the plaintiff in this case.
The appellant contracted to sell five hundred brick to the college and to deliver them on the campus. The brick were delivered to the college between four-thirty and five o'clock in the afternoon, by one of the appellee's trucks, the driver of which, by direction of the superintendent of the college grounds, stacked two hundred fifty of them on this concrete walk. The brick were eight inches long, and were stacked in two tiers, two brick, or sixteen inches in width, the stacks being, according to the truck driver, one and one-half feet, and, according to the appellant two feet high. According to the truck driver, the brick were stacked even and parallel with one side of the walk; but according to the appellant, they were stacked diagonally on the walk, one end thereof being thirty-two inches from the edge of the walk. There was no structural defect in the stacking of the brick. They were stacked as and where the college campus superintendent directed.
About seven o'clock P.M., of the day on which the brick were stacked on the walk, the appellant, who is nearsighted, entered the college campus from the road, over this walk, and was proceeding thereon to his home beyond and on the opposite side of the campus. It was dark, the campus was not lighted, and there were no lights at or near the brick to give warning thereof. He stumbled over the brick, fell, and was injured.
The appellee suggests several reasons why the judgment is correct, but it will be necessary to consider only one of them, which seems to be the one on which the court below acted.
When the appellee's truck driver stacked the brick on the walk as directed by the college's campus superintendent, it complied with its contract to sell and deliver them, and had no further control thereover or concern therewith. The college had the right to stack the brick on the walk and there was no negligence in so doing alone; the negligence, if any, consisted in not placing lights thereon or near thereto, or other danger signals, to warn persons using the walk at night of the presence thereof. The duty to so warn persons using the walk, if such there here was, rested not on the appellee, but on the college.
"Subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons; the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties, by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition, is shifted to the proprietor." 1 Thompson on Negligence, section 686, quoted with approval and applied by this court in Vicksburg v. Holmes, 106 Miss. 234, 63 So. 454, 51 L.R.A. (N.S.) 469.
This rule is in accord with practically all the authorities, as will appear from the notes to Thornton v. Dow, 32 L.R.A. (N.S.) 968; note to Canal Construction Co. v. Clem, 41 A.L.R. 8, section 28 thereof; Memphis Asphalt Paving Company v. Fleming, Ann. Cas. 1912B, 709; First Presbyterian Congregation v. Smith, 26 L.R.A. 504; Young v. Smith Kelly Co., 4 Ann. Cas. 226, and 45 C.J. 884.
Affirmed.