# Water Company v. Ware

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United States Supreme Court
83 U.S. 566
Water Company v. Ware
ERROR to the Circuit Court for Minnesota; the case being thus:
The city of St. Paul, desiring to have water-pipes laid along the streets of the city, passed an ordinance authorizing the St. Paul Water Company, an incorporated company, so to lay them. But as it was necessary that large excavations of the earth should be made along the streets, and considerable blasting of rock below, the ordinance in one of its sections, the 6th, thus provided:
'The said water company expressly agrees to protect all persons against damages by reason of excavations made by them in the said city, in laying pipes, and to keep the said excavations properly guarded by day and night, and to become responsible for all damages which may occur by reason of the neglect of their employees in the premises, and that the streets and highways in said city shall not be unnecessarily obstructe or incumbered in laying said pipes.'
The water company accepted the ordinance. It did not, however, do any work itself or by its own servants, but made a contract in writing with one Gilfillan to do the work for them. Under this contract, Gilfillan himself superintending the work every day, certain excavations, drillings, and blastings were made in different streets of the city.
While these operations were going on in one of the streets, a certain Ware, driving his horse and wagon in it, was much injured, owing to his horse taking fright at a steam-drill in the street, put there to drill the rocks that it was necessary to remove, and suddenly and without notice set in motion. He accordingly sued the company for damages.
His witnesses having given evidence tending to show that the accident was owing to the fact that the excavations were not 'properly guarded' and that the highways were 'unnecessarily obstructed and incumbered,' disclosed in cross-examination the fact above mentioned, to wit, that the company did not do any work itself or by its servants, but that it had farmed out its engagement to lay the pipes, and that all that had happened, had happened while the contractor was thus in the discharge of his contract.
Thereupon (the plaintiff resting) the defendant asked the court
'To direct the jury to return a verdict for the defendant, without requiring the defendant to enter upon a defence, upon the ground that the negligence, if any, found as the cause of injury to plaintiff, was the negligence of the servants and employees of said contractor, and not of the defendant or any of its servants and employees.'
This motion the court denied, saying:
'The action is brought upon the principle which is settled, at least in the Federal courts, that when a person (company or corporation included) is engaged in a work, in the ordinary doing of which a nuisance necessarily occurs, the person is liable for any injury that may result to third parties from carelessness or negligence, though the work may be done by a contractor, and although the plaintiff might have sustained an action against the city of St. Paul, it is his right to seek his remedy against the party who created the nuisance.'
The defendant then gave evidence to show that the plaintiff had been driving carelessly, and, the case being rested, asked the court to charge—
'1. That under the evidence in the case they must find a verdict for the defendant.
'2. That if the injury complained of was caused solely by the negligence or misconduct in the manner of doing the work of the employees of the contractor, then the defendant is entitled to a verdict.'
The court refused to give either charge, and the defendant excepted. Verdict and judgment having been given for the plaintiff, $2200, the defendant brought the case here.
Mr. W. H. Peckham, for the plaintiff in error:
The court below proceeded upon the theory either that under the contract between the water company and its contractor, the persons employed by the contractor to do the work, were the servants of the company, and that the company was therefore liable for their misconduct or negligence; or that having caused the work to be done, it was liable for such misconduct or negligence, though the relation of master and servants did not exist between it and the persons doing the work.
But the legal relation of master and servants did not exist between the water company and the persons in charge of the machinery and doing the work. They were in the employ of the contractor. He was exercising an independent employment, and was their superior. A party is not liable for the misconduct or negligent acts of the employees of one to whom he lets a job of work to be done by contract. This is settled by the New York case of Blake v. Ferris, and by other cases.
Mr. M. Lamprey, contra:
The case of Storrs v. The City of Utica is in point, and the reasoning of the court seems particularly applicable to this case. Blake v. Ferris, cited on the other side, is reviewed, and the doctrine that the city is not liable for injuries caused by negligence in the improvement of streets, because it has employed a contractor to do the work, is distinctly overruled.
But we need not enter on any discussion whatever of that formerly vexed question. Such a discussion is wholly unnecessary, and in view of other grounds on which the court below doubtless rested its views-grounds alike obvious and impregnable-such a discussion might be called irrelative.
The effect of section six of the ordinance, which is both an agreement with the public and a law, is to make the water company liable, when injury results from negligence of an employ e, whether such employ e is a contractor or workman. The company agrees to protect all persons against damages by means of excavations; to keep the excavations properly guarded; to become responsible for all damages; and not to unnecessarily obstruct the streets. It cannot rid itself from the primary liability imposed by this ordinance, by letting the work to a contractor. The liability exists, no matter how the work is done. The contractor is an employ e of the company within the meaning of this section.
Reply: 1. The ordinance was intended solely for the indemnity of the city, and one not a party to it can derive no rights under it.
2. The water company, under the ordinance, did not agree to become responsible for the misconduct of the persons doing the work, but only for damages 'by reason of excavations,' and 'to keep such excavations properly guarded,' and to become responsible for all damages which might occur 'by reason of the neglect of their employees in the premises;' that is, by reason of the neglect of its employees to keep its excavations properly guarded. The object of the provision was to bind the company to do, in respect to the public streets, what, as between the city and the public, would be primarily the duty of the city to do. The only change it made between the city and the company was to give to the city a contract right to hold the company for any damages it might be compelled to pay, by reason of the existence of the excavations in the street.
Mr. Justice CLIFFORD delivered the opinion of the court.

## Notes

* ↑ Forsyth v. Hooper, 11 Allen, 419; Pack v. The Mayor, &c., 8 New York, 222; Kelly v. The Mayor, &c., 11 Ib. 432; Painter v. P ttsburgh, 46 Pennsylvania State, 213.
* ↑ 5 New York, 48.
* ↑ Hilliard v. Richardson, 3 Gray, 349; Callahan v. Burlington Railroad Company, 23 Iowa, 562; Chicago City v. Robbins, 2 Black., 418.
* ↑ 17 New York, 108.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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