Opinion
No. 25641
Decided July 8, 1936.
Negligence — Liability for acts of independent contractor or servants — Obligation of precaution upon person contracting work dangerous to public — Employer not divested of duty to public by employing independent contractor — Owner of sign, projecting over sidewalk, cannot avoid duty to travelling public, when.
1. Where danger to others is likely to attend the doing of certain work unless care is observed, the person having it to do is under a duty to see that it is done with reasonable care, and cannot, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants.
2. When a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that reasonable precautions are taken to prevent injury.
3. The duty to refrain from interfering with the right of the public to safe and unimpeded use of highways and streets is one of which an employer cannot divest himself by committing the work to a contractor.
4. One who erects and maintains a large electric sign projecting over the street from his building has a duty to prevent its becoming a cause of danger to the travelling public by reason of any defect, either in structure, repair or use, against which reasonable skill can guard. Such duty arises from the danger to others incident to the maintenance of such sign and the performance of any work in its repair where located, which duty he cannot avoid or shift to another by means of any contract.
ERROR to the Court of Appeals of Mahoning county.
Richman Brothers Company is the owner of a clothing store in Youngstown, in front of which, and overhanging the sidewalk, is an electric sign extending about six feet from the building, and about thirty-five feet in height, its lowest point being about fifteen feet from the sidewalk. That company entered into a written contract with the Pennsylvania-Ohio Power Light Company, which contract was later assumed by its successor, the Ohio Edison Company, whereby it was agreed that the latter company should, for the period of one year, subject to renewal, inspect and keep clean and in order the electric sign referred to, and should paint the same. The Ohio Edison Company in turn engaged the services of the Walker Sign Company to paint the sign. While that work was in progress, an employee of the sign company permitted a bucket of paint, which had been fastened to a saddle seat, to become disengaged and fall, striking a cornice of the building and thereafter striking and injuring Margaret Miller.
She instituted this action in the Court of Common Pleas of Mahoning county against Richman Brothers Company, the Ohio Edison Company and the Walker Sign Company; but in the amended petition subsequently filed, upon which the case went to trial, only the Richman Brothers Company and the Ohio Edison Company were named as parties defendant. Plaintiff charged the Ohio Edison Company, through its agent operating within the course and scope of its employment, with negligence in failing to take precautions by guard or other fixture to keep the bucket of paint securely fastened to its apparatus so it would not fall; in failing to maintain barriers or guards, or giving any warning to prevent pedestrians, and especially the plaintiff, from walking under the sign. Richman Brothers Company is charged with negligence in that it knew repairs and alterations were being made on the sign and failed and neglected to give any warning thereof to pedestrians or station any guards to divert the course of pedestrians from under such sign.
The answer of the Ohio Edison Company, in addition to a general denial, averred that the Walker Sign Company was doing the work as an independent contractor by virtue of a certain contract whereby it was to receive a stipulated sum for said work, and the Ohio Edison Company did not retain any right of supervision or control over the work or the means and method of doing it. The answer of the Richman Brothers was a general denial.
In the course of the trial, the plaintiff elected to proceed against the Richman Brothers Company alone and dismissed the action without prejudice as against the defendant, the Ohio Edison Company. The trial resulted in a verdict in favor of the plaintiff, upon which judgment was rendered. Upon proceeding in error, that judgment, after modification by a remittitur directed and accepted, was affirmed by the Court of Appeals. Thereafter, upon motion, this court ordered the record certified for review.
Messrs. Morgan, Cailor Cunningham and Mr. W.P. Barnum, for plaintiff in error.
Mr. Edward L. Williams, for defendant in error.
The primary question presented in this case is whether the evidence disclosed by the record warrants any judgment against Richman Brothers Company. Exemption from liability was claimed upon the ground that the injury for which damages are sought, if the result of any negligence, was that of the servant of an independent contractor with whom Richman Brothers Company had contracted to do a definite work without reserving any control over the manner of the performance of the contract or the doing of the work. Recovery was sought upon the theory that the facts presented bring the case within an exception to the general rule of non-liability for the negligence of one engaged as an independent contractor. The record discloses the following pertinent evidence:
The Ohio Edison Company, pursuant to its contract with Richman Brothers Company, procured the Walker Sign Company to paint the sign in question. The sign was reached by the painter by means of a ladder extending from the pavement five or six feet from the building and leaning against the building or the sign, the evidence being contradictory in that respect. In getting from the bottom of the sign to the top, a pulley arrangement was employed, with the painter seated on a seat swing. His paint bucket was hung under this seat swing with an "S" hook, one end of which was open, permitting the bucket to become disengaged and fall, striking the plaintiff. No barricades or warning signs had been erected, which fact had been brought to the attention of the manager of the Richman Brothers Company the day previous to the accident, together with information that paint was falling to the walk as a result of the work being done above. There was some testimony to the effect that the rope which operated the pulley controlling the saddle seat was coiled beneath the ladder and that a rope with a red flag was stretched from the ladder to the store building. The record, however, discloses that plaintiff, when hit, was about three feet toward the curb and away from the base of the ladder. The accident occurred about the noon hour while pedestrians were passing, and the store of the Richman Brothers was open and doing business.
It is sought to bring this case within the principle announced and applied in the early case of Bower v. Peate, 1 L. R., Q. B. Div., 321, 326 (1875-76), 45 L. J., Q. B., 446. It is there stated as follows: "A man who orders work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing someone else — whether it be the contractor employed to do the work from which the danger arises or some independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful." In this early English case, it is stated that "there is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted." The work there let necessitated the lowering of the foundations of the employer's house, and it was known that some sort of underpinning would be required to support the plaintiff's soil during such operation. It was negligence in that regard which resulted in injuries to plaintiff's house, and it was held under the principle stated that defendant was liable.
This principle was applied in the case of Covington Cincinnati Bridge Co. v. Steinbrock Patrick, 61 Ohio St. 215, 55 N.E. 618, 76 Am. St. Rep., 375, where the court announced the general proposition as follows: "Where danger to others is likely to attend the doing of certain work, unless care is observed, the person having it to do, is under a duty to see that it is done with reasonable care, and cannot, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants." The principle thus announced, although stated in varying language in the many decisions on the subject, has been applied in numerous cases involving contracts of an owner of property with an independent contractor for the doing of work affecting a street or highway where, as a necessary or probable result, a dangerous situation would be created by the doing of the work undertaken pursuant to such contract.
It is this phase of the subject we are called upon to consider under the facts presented by the record in this case, and to which we must limit ourselves to keep this opinion within reasonable bounds. It is well established that a municipal corporation is liable for injuries resulting from an open and unguarded street excavation made by an independent contractor, though it did not reserve or exercise any control or discretion over the manner of doing the work other than to see that it was done according to specifications. Circleville v. Neuding, 41 Ohio St. 465.
For like reasons, many cases cited in 23 A. L. R., 1053, support the general proposition that "when a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and if necessary precautions are not taken he cannot escape liability by seeking to throw the blame on the contractor." It is there further stated that such doctrine "embraces the subordinate proposition * * * that the duty to refrain from interfering with the right of the public to safe and unimpeded use of highways and streets is one of which an employer cannot divest himself by committing the work to a contractor."
The Supreme Court of the United States, in the early case of Robbins v. Chicago City, 71 U.S. (4 Wall.), 657, 18 L.Ed., 427, held that "where work done on a public highway necessarily constitutes an obstruction or defect in the highway which renders it dangerous as a way for travel and transportation unless properly guarded or shut out from public use, in such case a principal for whom the work was done cannot defeat the just claim of a municipal corporation which has had to pay damages, or of a private party who has suffered injury, by proving that the work which constituted the obstruction or defect was done by an independent contractor."
The same principle was announced and applied in the case of Hawver v. Whalen, 49 Ohio St. 69, 29 N.E. 1049, 14 L.R.A., 828, in the following very clear statement in the syllabus: "Where the owners of a city lot, in the course of constructing thereon a building abutting on a street, make, by their own employees, an excavation in the adjacent sidewalk for coal vaults and an area to be used in connection with the building, a duty devolves upon them to guard it with ordinary care, and this duty is not shifted from them by letting the work of building the area walls and constructing the coal vaults to an independent contractor * * *."
The case of Railroad Co. v. Morey, 47 Ohio St. 207, 24 N.E. 269, 7 L.R.A., 701, involved the question of liability for damages sustained for injury caused by an unguarded ditch across the street. The question presented was whether such work was done by an independent contractor of the railroad company as would exonerate the company of liability for the negligence of the contractor and his servants. This court held in the syllabus: "One who causes work to be done is not liable, ordinarily, for injuries that result from carelessness in its performance by the employees of an independent contractor to whom he has let the work, without reserving to himself any control over the execution of it. But this principle has no application where a resulting injury, instead of being collateral and flowing from the negligent act of the employee alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable though the negligence is that of an employee of an independent contractor."
There is good reason for the requirement that one who employs another to perform work on the street upon which his premises abut which endangers passers-by cannot divest himself of all duty and responsibility with regard thereto. Assuming that the erection and maintenance of the large electric sign projecting over the street from defendant's building was duly authorized, the defendant is under a positive duty to prevent its becoming a cause of danger to the traveling public by reason of any defect, either in structure, repair or use, against which reasonable skill can guard. The duty arises from the danger to others incident to the performance of the work, which he cannot avoid or shift to another. As was said by the court in the case of McHarge v. M. M. Newcomer Co., 117 Tenn. 595, 100 S.W. 700, which involved injury by the fall of an awning overhanging a public street while being repaired by an independent contractor, "To argue that this was not a thing intrinsically dangerous to the public would be to assert the perfection of mankind and deny the laws of gravity."
Attention is again directed to Covington Cincinnati Bridge Co. v. Steinbrock Patrick, supra, where, on page 223, the court cites numerous authorities supporting the proposition that "The weight of reason and authority is to the effect that, where a party is under a duty to the public, or third person, to see that work he is about to do, or have done, is carefully performed so as to avoid injury to others, he cannot by letting it to a contractor, avoid his liability, in case it is negligently done to the injury of another."
Though involving a somewhat different state of facts, much of the reasoning of Minshall, J., in that case is applicable and quite pertinent here. The following is so much in point that we repeat it here: "It is urged as unreasonable that one who has work to perform, that he himself cannot perform, from want of knowledge or skill, should be held liable for the negligence of one whom he employed to do it, since, if he did reserve control, it would avail nothing from his own want of knowledge and skill. There is a seeming force in this, but only so. It is not agreeable to the principles of distributive justice. For it is equally a hardship that one should suffer loss by the negligent performance of work which another procured to be done for his own benefit, and which he in no way promoted and over which he had no control. Hence where work is to be done that may endanger others, there is no real hardship in holding the party, for whom it is done, responsible for neglect in doing it. Though he may not be able to do it himself, or intelligently supervise it, he will nevertheless, be the more careful in selecting an agent to act for him. This is a duty which arises in all cases where an agent is employed; and no harm can come from stimulating its exercise in the employment of an independent contractor, where the rights of others are concerned."
Under the facts disclosed by this record, defendants owed to the plaintiff and the public while in the use of the sidewalk in front of their premises a duty and obligation to see that reasonable care was exercised for their protection from injury while the sign projecting over the sidewalk from their building was undergoing repair and repainting, and they were not absolved from such duty and responsibility by reason of the contract in question. We are in accord with the holding of the Court of Appeals that there was no prejudicial error in the submission of the case to the jury, or in the action of the trial court with reference to requested instructions or the general charge.
The judgment is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, DAY and ZIMMERMAN, JJ., concur.
JONES, J., dissents.