Opinion
Submitted November 21, 1900
Decided January 8, 1901
James Troy for appellant. George W. Wingate for property owners. John Whalen, Corporation Counsel ( William J. Carr and R. Percy Chittenden of counsel), for respondent.
When a municipal corporation has general authority by statute to make a public improvement in a public street, which does not involve direct encroachment upon private property, it is not liable for consequential damages, unless they are caused by negligence, misconduct or want of skill on the part of its servants or agents. ( Atwater v. Trustees of Canandaigua, 124 N.Y. 602; Radcliff v. Mayor, etc., 4 N.Y. 195; Transportation Co. v. Chicago, 99 U.S. 635; 2 Dillon on Munic. Corps. § 1029; Shearman Redfield's Negligence, § 272.) In such cases the corporation is the agent of the state, and acts done in the proper exercise of governmental powers do not make such agent liable at common law, even if they indirectly affect but do not directly invade private property. If the work is unlawful, the injury willful, or the damages are owing to the failure of the proper authorities to exercise due care or skill, there is no exemption from liability, even when the undertaking is wholly for the benefit of the public.
The relief sewer, which is the subject of this controversy, was lawful, because it was built wholly in a public street, without encroaching upon private property, and was duly authorized by statute. Such damages as were inflicted upon abutting property were an indirect result of the work and were not caused by willful misconduct. The controlling question is whether they were owing to the omission of some municipal duty, or, in other words, whether the city, through its representatives, was guilty of negligence, which includes want of skill whenever the exercise of skill is required by law. This question, for convenience, may be resolved into the following subordinate questions: (1) Whether the defendant was negligent in selecting an improper route or adopting an improper plan for the construction of the sewer; (2) whether James J. Moran Company were independent contractors, as that phrase is known in law; (3) whether said contractors, if not independent, were negligent in executing the work.
The city was not obliged, at its peril, to select the best possible route or to adopt the best possible plan, provided the route selected and the plan adopted were reasonably safe. While the statute which conferred the power did not provide that this particular sewer should be built in any particular street, it was without limitation, and, hence, the city had control of the method of making the improvement. The route and plan adopted promoted the interest of the public, but two experts called by the plaintiff testified, in view of what had happened and not in anticipation of what might happen, that construction by means of a tunnel would have caused less settling of the ground and less danger to abutting property than construction by an open trench. The city employed engineers conceded to be competent, who, after long and careful study of the subject, recommended the route and plan finally determined upon. That the route thus selected was a proper one, according to the evidence, does not admit of discussion.
The city was bound to exercise due care to see that the plan decided upon was reasonably safe, but its "rights were superior to those of persons engaged in work private in character." ( Atwater v. Trustees, supra.) The plan adopted had been in general use for years. It was carefully prepared to protect both public and private interests. The tunnel plan, while safer in most respects, is dangerous to some extent, as well as more expensive. It causes less settling of the ground and prevents interference with travel, but inspection is more difficult and inferior work less apt to be discovered. It was not in general use, for almost all sewers in this country, at the time the plan was adopted, were laid in open cuts. "The tunnel is the exception, not the rule." There are three methods of tunneling, known as the timber, shield and pilot systems. One of the plaintiff's experts condemned the timber method as dangerous at the place in question, and testified that the pilot system was the best, although he had never seen it in operation. The other expert sworn for the plaintiff also preferred the pilot system, but said that he had never used it and that it was of recent origin. Even by the pilot system there are intervals of time when portions of the earth above are unsupported before the sustaining plates are put in, and while the interval is short, subsidence of the soil may take place before the support is adjusted.
Engineering conditions required the sewer to be placed about 35 feet beneath the surface of the street in front of the plaintiff's property, which left insufficient lateral pressure of the soil to prevent undue vertical pressure upon the work of excavating a tunnel. A sewer only 10 feet in diameter cannot be conveniently built by means of a tunnel, owing to the lack of room for workmen, and the city had never used that method under the circumstances named. The inconvenience of building a sewer but 10 feet wide by the tunnel method was illustrated by actual experience on the work in question, as it was necessary, for a part of the way, to tunnel under a hill eighty feet high, yet the contractor testified that he asked and obtained permission from the city authorities to make a sewer 12 feet in width, without additional charge, although the contract called for one only 10 feet wide. Even that tunnel, at that depth, caused some damage to abutting property, and it cost $58 more per running foot than where a cut was made.
Furthermore, there was a sewer in actual use 12 feet below the surface of the street, which, in case of leakage, might flood the tunnel and make it dangerous to adjacent property through settling of the moist soil. The city wished to remove that sewer from the street altogether, which would have been impossible except by the trench system. The presence of boulders in the soil made the tunnel plan less feasible than it otherwise would have been. The experience of the city was against it. No expert expressly condemned the plan adopted, and a large majority, including those of the highest standing and greatest experience, preferred it. The specifications made careful provision to protect the property of abutting owners by shoring, sheathing and otherwise, as well as to compel the contractors to make good any loss that might happen.
The fact that the engineers of the city expected there would be some damage to sidewalks and stoops before they adopted the plan does not show that it was defective, because some damage would have resulted from any plan. Consequential damages, more or less serious, naturally result from making extensive improvements in a public street occupied with dwellings standing upon either side. The city, however, is not liable therefor at common law so long as they are confined to consequences that are the necessary and usual result of the proper exercise of the power to make the improvement. A change of grade may leave some houses too high and others too low, either to look well or to be conveniently used with reference to the street, yet, even if the change is such as to endanger their stability, the city is not responsible at common law, although the subject has been regulated by statute to some extent in certain cities. ( Radcliff v. Mayor, etc., supra.) As was said in Atwater v. Trustees ( supra), which is an instructive case, "serious injury to property may be occasioned by the lawful exercise of powers of public character pursuant to law, and if the work is carefully and skillfully performed the consequences may be damnum absque injuria when the legislature has provided for no compensation. In such case the protection of the owner of property not taken or appropriated, which may be subjected to hazard or injury, is in the care and skill to be observed by those engaged in the execution of the work. If they fail to do that they are liable for the consequences of such failure."
We think the evidence before us, even with every permissible inference drawn in favor of the plaintiff, would not permit a jury to find that the plan of construction was not reasonably safe. While some facts bearing on the principal question were in controversy, the uncontradicted evidence, when considered in connection with those facts, assuming them to be found according to the plaintiff's theory, left no question of fact as to the reasonable safety of the plan.
When a municipal corporation furnishes its own materials and makes a public improvement through agents selected by itself, with power to discharge them at will, and to direct them as to details of the work, they are its servants, and the master who selects and controls them is liable for their negligence. They are, so to speak, the hands and arms of the city, to do its will, as the hands and arms of a man do his will.
When, however, the city has power to let the work and it enters into contract with competent contractors, doing an independent business, who agree to furnish the necessary materials and labor and make the entire improvement according to specifications prepared in advance, for a lump sum, or its equivalent, they are not the servants or agents of the city, but are independent contractors, and the city is not liable for their negligence, even when it reserves the right to change, inspect and supervise to the extent necessary to produce the result intended by the contract, provided the plan is reasonably safe, the work is lawful, is not a nuisance when completed, and there is no interference therewith by municipal officers, which results in injury. ( Berg v. Parsons, 156 N.Y. 109; Engel v. Eureka Club, 137 N.Y. 100; Butler v. Townsend, 126 N.Y. 105; Charlock v. Freel, 125 N.Y. 357; Herrington v. Village of Lansingburgh, 110 N.Y. 145; Ferguson v. Hubbell, 97 N.Y. 507; Town of Pierrepont v. Loveless, 72 N.Y. 211; Kelly v. The Mayor, 11 N.Y. 432; Pack v. The Mayor, 8 N.Y. 222; Blake v. Ferris, 5 N.Y. 48; Reedie v. London N.W. R'way Co., 4 Exch. 244; Overton v. Freeman, 21 L.J.C.P. 52.) Independence of control in employing workmen and in selecting the means of doing the work is the test usually applied by courts to determine whether the contractor is independent or not.
James J. Moran Company, as competent contractors, undertook the independent business of building the sewer in question with their own materials and their own men, for, by specific agreement, they were to furnish both. They represented the will of the defendant as to the result of the work, but not as to the means of doing it. The men, the machinery and the details were all under their control. The city could not employ workmen for them, nor direct the workmen employed by them. It could not select the tools and appliances to be used, nor require them to be used in any particular way or at any particular time. The will of the contractors, not of the city, controlled in these respects. While certain municipal officers could require the contractors to discharge incompetent workmen, that did not make the workmen not discharged the servants of the city, nor empower it to fill the places of those discharged with men of its own selection.
Stipulations to secure faithful compliance with the specifications on the part of the contractors do not make them servants of the city, as was held in Kelly v. The Mayor ( supra), where the contract contained the following clause: "The whole work to be done under the direction and to the entire satisfaction of the commissioner of repairs and supplies, the superintendent of roads and the surveyor having charge of the work." The contractor in that case also "agreed to do the work, to take all necessary precautions for the prevention of accidents or injuries to persons or property and to indemnify the corporation against all loss or damage by reason of any neglect or unskillfulness in its performance." The court said: "The clause in question clearly gave to the corporation no power to control the contractor in the choice of his servants; that he might make his own selection of workmen will not be denied. This right of selection lies at the foundation of the responsibility of a master or principal for the acts of his servant or agent. * * * As a general rule certainly no one can be held responsible as principal who has not the right to choose the agent from whose act the injury flows. * * * The object of the clause relied upon was not to give to the commissioner of repairs and the other officer named the right to interfere with the workmen and direct them in detail how they should proceed, but to enable them to see that every portion of the work was satisfactorily completed. It authorized them to prescribe what was to be done, but not how it was to be done nor who should do it."
So in Pack v. The Mayor ( supra) the contract provided that the work was to be done according to certain specifications, and the contractor also agreed to "conform the work to such further directions as should be given by the street commissioner and one of the city surveyors," yet it was held that this was "nothing more than a stipulation for a change of the specification of the work, as stated in the contract, at fixed prices provided therein. It does not, as the court below held, make Riley the immediate servant of the defendants nor give to them any control over him as to the manner or otherwise in which he should conduct the blasting." See, also, Charlock v. Freel ( 125 N.Y. 357), where the city reserved the right to "vary, extend or diminish the quantity of work during its progress" and authorized the engineer to fix the price of all work not included in the contract.
As was said by the learned Appellate Division, the "supervisory powers related to the character of the work performed for the then city of Brooklyn and not to the relations of the contractors with third persons." Those relations were not interfered with by the city, which, however, made careful provision for the protection of abutting property by shoring it up, sheathing the trench and the like, but leaving to the contractors full control of the means and method of doing it. While the contract provided that it should be done, it did not provide how it should be done. "To make the city liable it must have the power to direct and control the manner of performing the very work in which the carelessness occurred." ( Vogel v. The Mayor, 92 N.Y. 10, 18.)
James J. Moran Co. were not servants employed in the business of a master and subject to his control as to all parts of the work, but were independent contractors engaged in making an entire improvement, free from control as to the manner of performance, although subject to instructions as to results. The plan was reasonably safe, the work was lawful, was not interfered with by the city to the injury of the plaintiff and was not a nuisance when performed. We think the city was liable neither for the negligence of the contractors nor that of their agents or servants.
The contractors were, of course, liable for their own negligence, but the conclusion already reached makes it unnecessary to consider that subject upon this appeal.
The judgment should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN and LANDON, JJ., concur.
Judgment affirmed.