[Mayor and Aldermen of Birmingham v. McCary.] ant was the successful party; the costs accruing at the instance of the said defendant in such cases, having never been paid to said Bradley. The court gave the general charge in favor of plaintiff. HEWITT, WALKER & PORTER, for appellant, cited Code of 1886, § 2837. GILLESPY & SMYER; and WEBB & TILLMAN, contra, cited 69 Ala. 318; 71 Ala. 496; 78 Ala. 318; Ib. 1; 51 Ala. 488. SOMERVILLE, J.-The fees due the plaintiff, as compensation for official services performed by him, at the request of the defendant, being such as were authorized by law, constituted a debt, for which an action of debt, or indebitatus assumpsit would clearly lie. And the provisions of the statute, authorizing a judgment to be rendered in favor of the successful party for costs in civil actions (Code of 1886, § 2837), is no bar to the maintenance of such a suit. Hill v. White, 1 Ala. 576; Carville v. Reynolds, 9 Ala. 969; Tillman v. Wood, 58 Ala. 578; Dane v. Loomis, 51 Ala. 487: Bradley v. State, 69 Ala. 318. The judgment is affirmed. Mayor and Aldermen of Birmingham v. McCary. Action against Municipal Corporation for Injury resulting from defective Sidewalk. 1. Liability for injuries, as between contractor and employer.—The general rule is, that where there is an independent contractor-or one who reserves the general control over the work. with the right to direct what shall be done, and the manner of doing it-the quasi employer, or contractee, is not liable for an injury resulting from the negligence of such contractor, or of his servants, collateral to the work contracted to be done, such work not being a nuisance per se. In all such cases, the rule of respondeat superior applies. 2. Same; exception in case of dangerous work.-An exception to this general rule is, that where the work contracted to be done, however carefully and skillfully performed, is necessarily and intrinsically dangerous, the employer is liable, equally with the contractor, for injuries resulting directly and necessarily from the acts authorized to be done; but this exception does not extend to injuries which are not a necessary 84 469 94 500 84 469 97 186 84 469 115 404 84 469 143 251 143 254 [Mayor and Aldermen of Birmingham v. McCary.] result of the work, but are caused by the negligent act of the contractor or his servants; for these the contractor alone is liable. 3. Same; exception where employer is under legal duty to secure safety; municipal corporation; work on streets; notice of defect.--Another exception to the general rule is, where the law imposes on the employer the duty to keep the subject of the work in a safe condition; as in the case of a municipal corporation, authorized and required to keep the streets and sidewalks in a safe condition for passage by day and by night; in which case, the employer, or corporation, is liable for injuries resulting from an obstruction or defect caused in the performance of the work, and left exposed by night, although the work was done by an independent contractor; and notice of such obstruction or defect is imputed by law to such employer. 4. Contributory negligence as question of law or fact.-Where the evi dence is indeterminate, being such that different persons might reasonably draw different conclusions from it, the question of contributory negligence vel non is properly submitted to the determination of the jury. APPEAL from Birmingham City Court. Tried before Hon. H. A. SHARPE. Appellee, McCary, brought suit against the Mayor and Aldermen of Birmingham to recover damages for injuries sustained by reason of a ditch across one of the streets, including the sidewalks, of said city of Birmingham being left open without proper lights, or other warning of danger, and into which plaintiff fell the night of November 25, 1885, and broke his arm. The several defenses to the action appear in the opinion. The contributory negligence charged on plaintiff was that he did know, or ought to have known, of the existence of the ditch, and consequently to have been looking out for the same at the time of his fall, he having passed along the street, on the opposite sidewalk, the afternoon of the said 25th of November, and having had to step over the same ditch on the opposite side. The ditch or excavation had been opened the afternoon of the day the injury was received. The merits and demerits respectively of the charges given and refused are set out in the opinion, and it is not considered necessary to here give said several charges in hæc verba. WEBB & TILLMAN, for appellant, cited 103 Penn. St. 32; -39 Conn. 587; 63 Cal. 269; 57 Verm. 252; 4 Wall. 679; 27 Am. Rep. note, 647, 650; Cen. Law Journal, vol. 23, note, 108-109; 2 Black, 418; Heranner v. Webb, N. Y. Ct. App. Sept., 1886. On question of notice to city, Mayor v. Sheffield, 4 Wall. 189. On question of plaintiff's contributory negligence, 81 Ala. 234. [Mayor and Aldermen of Birmingham v. McCary.] MOUNTJOY & TOMLINSON, and SMITH & LOWE, contra.-The city is liable for Stonestreet's failure to close the sewer, or provide lights or warning of danger.-5 Ohio St. 38; 103 Mass. 194; 61 Ill. 431; 59 Me. 520; 122 Mass. 481; 2 Dill. Munic. Corp. (3d Ed.) §§ 1027, 1030, 1024, 1025; 70 Ind. 65; 41 Ohio St. 465; 38 Ohio St. 50; 19 W. Va. 323. Notice of the excavation to the city was unnecessary.-2 Dill. on Munic. Corp. (3d Ed.) §§ 1024, 1025. SOMERVILLE, J.-The present action is based upon the alleged negligence of the corporate authorities of the city of Birmingham in allowing a ditch or excavation, made across a sidewalk, incident to the construction of a sewer, to remain open during the night time, without covering, guards or lights, in consequence of which the plaintiff fell in, and was injured by the breaking of his arm. The main defense relied on by the city is, that the wrongful act complained of was the act of one Stonestreet, to whom the city had lawfully let the contract of constructing the sewers, and that under the terms of the contract Stonestreet was an independent contractor, and, as such, was alone liable to the plaintiff for the damages claimed, if any one was so liable. Contributory negligence on the part of the plaintiff, and want of notice of the defect or excavation in the street, were also relied on by the defendant. The contract between the city and Stonestreet provided that the work was to be done according to certain plans and specifications, and under the supervision of the city engineer, so far as to make it his duty to inspect the laying of the sewerpipes, and to accept and receive the work when completed; but neither the engineer nor other city officers had anything to do with the employment or direction of the hands, nor of superintending the work, while it was in progress, except that it was the engineer's duty to lay out the work, set the stakes fixing the depth the sewer-pipes were to be laid, and to see that they were laid at proper depth or grade. The general rule is well settled, and not denied by appellee's counsel, that one person is not ordinarily liable for any injury produced by the negligence of another, unless the relation of master and servant exists between them; and that where such injury is done by an independent contractor-or one who reserves the general control over the work, with the right to direct what shall be done, and the manner of doing it the quasi employer, or contractee, can not be held liable [Mayor and Aldermen of Birmingham v. McCary.] for an injury resulting from the negligence of such contractor, or of his servants, and collaterally to the work contracted to be done, such work not being a nuisance per se. In all such cases, the rule of respondeat superior applies. Wood on Master & Servant (2d Ed.), p. 603, § 314 et seq.; p. 598, § 313; Cuff v. Newark, &c., R. R. Co., 35 N. J. 17; s. c., 10 Amer. Rep. 205. But there are two established classes of exceptions to which this general rule has no application. It does not apply: (1) Where the work contracted to be performed will, in its progress, however skillfully done, be necessarily or intrinsically dangerous; and (2) where the law imposes on the employer the duty to keep the subject of the work in a safe condition. The first exception applies where the obstruction or defect which produced the injury results directly and necessarily from the acts which the contractor agreed and was authorized to do, the person authorizing and the person authorized each being equally liable to the injured party, the relation of principal and agent pro hac vice at least existing between them, notwithstanding the employment may in other respects be independent. "It would be monstrous," said Lord Campbell, in Ellis v. Sheffield Gas Cons. Co., 2 Ellis & Bl. 767, "if the party causing another to do a thing were exempted from liability for that act merely because there was a contract between him and the person immediately causing the act to be done." The rule is said by Mr. Justice Clifford, in Water Co. v. Ware, 16 Wall. 566, to be based on common justice, that "if the contractor does the thing which he is employed to do, the employer is as responsible for the thing as if he had done it himself; but if the act which is the subject of complaint is purely collateral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the work [act] to be done." It is observed by Mr. Dillon, in his work on Municipal Corporations, that while the principle of respondeat superior does not generally extend to cases of independent contracts, where the party for whom the contract is to be done is not the immediate superior of those guilty of the wrongful act, and has no choice in the selection of the workmen, and no control over the manner of doing the work, it is important to bear in mind that this general rule "does not apply where the contract directly requires the performance of a work in "In [Mayor and Aldermen of Birmingham v. McCary.] trinsically dangerous, however skillfully performed.” such a case," he adds, "the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract."-2 Dillon Munic. Corp. (3d Ed.), § 1029. A fair illustration of this principle is found in the case of City of Joliet v. Harwood, 86 Ill. 110; s. c., 29 Amer. Rep. 17, where a city, employing a contractor to construct a sewer, where the work necessarily involved the blasting of rock, was held liable for the damage resulting from a rock thrown by the blast against the plaintiff's house. The right of recovery was held not to rest on the charge of negligence by the contractor, who used all proper diligence in his work, but upon the fact that "the city caused work to be done which was intrinsically dangerous-the natural, though not the necessary consequence of which was the injury to plaintiff's property.' So, in the case of McCafferty v. Spuyten, &c., R. R. Co., 61 N. Y. 178, we have an example of the principle that there is no liability where the injury is collateral to the work done by an independent contractor, and not a necessary result of its execution. There a railroad company lawfully let the work of constructing its road to a contractor, who sub-let a part of the work to others. The employees of a sub-contractor, by negligently over-charging a blast of powder, caused rocks to be thrown against the plaintiff's premises, resulting in the damage complained of in the action. The railroad company was held not to be responsible. In cases of this kind it has been held that the injury is presumed to be a necessary incident of doing the work, unless the defendant shows that it resulted from some act of negligence on the part of the contractor, or his servants.-Sabin v. Vt. Cen. R. R. Co., 25 Vt. 363. Mr. Wood, in his work on Master & Servant, thus formulates the principle: "When the work can not be done at all, in the ordinary modes of executing it, without producing injury and damage, the contractee is liable; but when the injury and damage results simply from the careless or improper mode of executing the work, and the contractee has been guilty of no negligence in selecting a contractor, there is no principle of law which casts upon the contractee the burden of responsibility; and,” he adds, "a contrary doctrine would be disastrous in its consequences, and serve seriously to embarrass and retard the proper use and healthy development of property, and the growth of cities and towns."-Wood on Master & Serv., p. 609 et seq.; and p. 603, § 314 (2d Ed.). |