WATER COMPANY V. WARE, 83 U. S. 566 (1872)

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U.S. Supreme Court

Water Company v. Ware, 83 U.S. 16 Wall. 566 566 (1872)

Water Company v. Ware

83 U.S. (16 Wall.) 566


Where an incorporated company undertook to lay water pipes in a city, agreeing that it would

"protect all persons against damages by reason of excavations made by them in laying pipes, and to be responsible for all damages which may occur by reason of the neglect of their employees on

Page 83 U. S. 567

the premises,"

held, on the company's having let the work out to a subcontractor, through the negligence of whose servants injury accrued to a person passing over the street, that the company could be properly sued for damages.

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 obstructed or encumbered 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

Page 83 U. S. 568

obstructed and encumbered," 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 defense, 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, $2,200, the defendant brought the case here.

Page 83 U. S. 570

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