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work done by an independent contractor has been accepted by the employer, and he has resumed possession, no recovery can be had by a third party against the contractor for negligence in the construction of the work. 0. H. Meyers, R. I. Jones, and R. C. Stewart, for the appellant.

W. S. Kirkpatrick and H. W. Scott, for the appellee.

571 DEAN, J. The church of plaintiff is a large brick building on the northwest corner of Second and Bushkill streets, in the city of Easton. On January 2, 1891, Bushkill street, in front of the church, commencing at the line of Second street and extending along the street for seventy-five to eighty feet, caved in, taking with it a portion of the pavement. A large Bewer and the water main of the Lehigh Water Company were located longitudinally on Bushkill street, and, after the cave-in, were found to be broken. A great quantity of water from both flowed toward the church, undermined the pavement and saturated the foundation, causing very serious damage to the property.

The plaintiff alleged the damage was caused by the negligent construction of the sewer in this: The church servicepipe connecting with the water-main had broken, and the water flowing therefrom had broken in the sewer, undermined the pavement, and damaged the foundation, before being per ceptible from the surface; the ground being frozen at the time, until the cave-in, the crust was not disturbed; the ser vice-pipe broke, it was alleged, because, in constructing the bewer, the 572 trench was negligently filled up-the plank sheeting, supporting temporarily the sides of the excavation during construction, being left in, and the cross-timbers permitted to remain resting on the service-pipe, and then the filling up done by puddding instead of tamping. As a result, when the earth settled, the weight wrenched off the service pipe from its connection, and the injury followed.

The plaintiff held the defendants answerable for the consequences of this negligent work at the sewer, because it was averred they had, as independent contractors with the city of Easton, constructed it under a written contract made the 1st of April, 1890, in pursuance of which contract they had finished the work about June 12th following.

At the trial there was much evidence on both sides on the questions: 1. Was the injury caused by the negligent construction of the sewer? 2. If so, then did this negligence consist in following the directions of the city engineer, as provided in the contract ?

The court, in a very full charge, submitted the evidence bearing on both questions to the jury. There was a verdict and judgment for defendants, and then this appeal, with thirty-eight assignments or error, each one of them pressed earnestly at the bar and in elaborate argument in voluminous paper-books.

At the trial below, as the case was presented by counsel, and submitted by the court to the jury, the question of negligence was considered first, and that of answerability of defendants second. We reverse this order, and inquire, first, whether, under the contract and evidence, the defendants are answerable, regardless of proof of negligent construction.

If the negligence which caused the injury was puddling up of the sewer-trench, and leaving in the sheeting which rested on the service-pipe, was this the act of the city, or that of the defendants as independent contractors? If the city, by the contract, retained control of the method of performing the work, then, to the extent defendants followed the method prescribed, certainly they were not independent.

The city ordinance, under date of 29th of November, 1889, enacts:

“ SECTION 1. .... The department of sewers is hereby authorized to construct the following described sewers in accordance 573 with the adopted map and plan on file in the office of the city engineer.”

Then follows a detailed enumeration of sewers, main and lateral, according to an elaborate plan. The sewer on Bushkill street is called main sewer B. Then section 4 enacts: “The building of said sewers shall be under the supervision and management of the city engineer.” Paragraph 47 of the contract stipulates that the sewer shall be constructed accord. ing to the plans on file, and according to the grades and lines given by the engineer .... and the sides of the trench shall, at the contractor's expense, be supported by proper timber- . work, when required by the engineer, to prevent caving and, after the completion of the brickwork, shall be carefully filled up and tamped around the sewer in horizontal layers of not over six inches, until the filling reaches a height of one foot above the top of the sewer, and then carried

up

in hori. zontal layers of not over nine inches, to the surface of the street, or within such distance of the surface as the engineer shall direct. And the engineer shall have the right to make alterations in the line, plan, form, or quantity of the work; and, in consideration of the completion of the work in conformity with the specifications and stipulations, and in strict accordance with the instructions of the engineer, the city agrees to pay, etc. And so, all through the contract, the intent of the city is to reserve control, not only of how the work shall be done to meet the specifications, but to change or vary the specifications as circumstances might suggest during the progress of it. The contractors had but very little authority, independent of the city engineer; in substance, they were to follow the specifications, unless the engineer directed otherwise when the engineer did direct, then the city exercised the control it had reserved, and the contractors were, as to such work, not independent.

On turning to the evidence touching on the filling of this trench in front of the church we find that, by the ordinance, the sides of the trench were to be supported by timber-work when required by the engineer, to prevent caving, and the completion of the work, by the contract, was to be in strict accordance with his instructions. The brickwork of the Bewer having been finished, to complete the work required tamping or puddling, either with the sheeting left on the sides of the 574 trench or with it taken out. Then the engineer gives this order:

“Easton, PA., June 10th, 1890. “Messrs. Smith & MINNAHAN: You will not remove any of the sheet piling now on Bushkill street, between Front and Third streets, as I am afraid by so doing you will interfere with the gas and water mains.

“Yours, truly,

"A. J. COOPER, Engineer." The city had reserved the right to make such an order, and the contractors were bound to obey it; in so far as leaving the sheeting in was negligence the city was answerable for the consequences.

. The engineer further testified that the method of filling up the trench was by his directions; that he directed them to puddle instead of tamping three feet above the archway to the surface, and it was done as he directed; because, in his opinion, puddling, as ordered by him, was better work than tamping. James Smith, one of defendants, who had supervision of the work in front of the church, testified that, after tamping three feet above the arch of the sewer, from there to the surface it was puddled as directed by the city engineer. There is no evidence in the case which contradicts this testimony tending to show that the work of filling the trench was wholly controlled by the city. There may have been negligence on the part of the city in the methods adopted, but, in giving such directions as were given, there was no usurpation of authority, but only the exercise of an authority reserved, and to be exercised, if the city chose, independent of the judgment of the contractors.

All the authorities cited by appellants, determining the liability of an independent contractor, are to the effect that if the power to direct is only as to the results of the work, without any control over the manner of performing it, the liability of the contractor remains. But this contract reserved far larger powers than mere direction as to results; as to many items of the specifications the right to direct the manner in which the work should be done was retained. In very few of the many specifications was the method of carrying them out left to the skill and judgment of the contractors. Even the right to discharge incompetent workmen was reserved to the city engineer.

678 If these contractors had done this work in front of the church in the mode set out in the specifications, the engineer only giving such directions as would insure his approval of it, the cases cited-Hunt v. Pennsylvania R. R. Co., 51 Pa. St. 475, Harrison v. Collins, 86 Pa. St. 153, 27 Am. Rep. 699, and others to the same effect-would apply; but here the case is clearly within the rule laid down in Allen v. Willard, 57 Pa. St. 374, that the liability of the employer continues where he has not relinquished his control over the work to be done, and the mode of performing it.

The testimony of Cooper, the engineer, and Smith, the contractor, was admissible, because it tended to show the actual exercise by the city of the right reserved under the contract, the alleged consequence of which was the damage complained of. The plaintiff alleged it was negligence to leave in the sheeting, and to puddle the filling of the trench; the defendants replied, this was not negligence, but, even if it were, the city did it, not we. And there is nothing in the evidence to contradict them. True, if the puddling was negligently done, after the engineer directed the contractors to follow that method, and such negligence occasioned the injury, the contractors could not escape liability because the city had changed the method. And there was some evidence tending to establish this part of plaintiff's case. It seems to be made more prominent here than in the court below. Appellants' seventh point, however, fairly embraces it, and the refusal of the court to unqualifiedly affirm it would, if another trial could be ordered, be ground for reversal.

But there is another point made by appellees to sustain their judgment which, it seems to us, is conclusive against the appellant. The evidence shows, without dispute, that the Bushkill street sewer in front of the church, between Second and Third streets, was finished by defendants about the 12th of June following the date of the contract, and that outlet connections were soon after made with it. Further, that on August 12th following it was fully completed, and an ordiDance was adopted regulating the connections to be made with it by residents, and permits were issued to those entitled to use it. The sewer had been in possession of and in actual use by the city for more than four months before the damage was done the church. The street, the surface of which was twenty feet above the sewer, had been repaired, and all traces of construction 576 at this point had disappeared. Clearly the city had in fact resumed fuli possession of this part of it. That a formal ordinance accepting the whole of the work done in the city under the contract was only adopted October 10, 1891, subject to the conditions of the contract, does not affect the question we are considering. This is not a contention between the city and its contractors, but between a third party and the contractors. It was the defendants' duty to construct the sewer according to their contract; that is, their contract duty, and they were answerable to the city for any breach of it, under certain circumstances, even after the work was taken off their hands. But the injury was caused after the completion of this part of the work, and after it had been in full use and possession by the city for months. An action of this character in this state, against the contractor, rests on the principle that, pending the performance of the work, he is in the place of his employer: Reynolds v. Braithwaite, 131 Pa. St. 416. The Pennsylvania rule, deducible from all the cases, is, that if the employer, at the time he resumes possession of the work, from an independent contractor, knew, or ought to have known, or from a careful examination could have known,

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