Wray v. Evans

1. Persons not personally interfering with the progress of a work or directing its progress, but contracting with third persons to do it, are not responsible for a wrongful act or for negligence in the performance of the contract, if the act agreed to be done be lawful. 2. The immediate employer of the agent or servant who causes the injury is alone responsible for it; to him only the rule respondeat superior applies. 3. There cannot be two superiors severally responsible for the same wrongful act. 4. VVray contracted with a gas company to dig trenches in streets, lay gas-pipes &c., to the satisfaction of the company’s engineer, who was to have the right to suspend the work; Wray 'to bear all losses, &c., which should happen to any person. Wray sub-let to Davis to perform all the work for which Wray had contracted, to the satisfaction of the company’s engineer, to be suspended as the engineer might direct; Davis to bear all losses by reason of carrying out the work through negligence, &c.; if he neglected to perform the work to the satisfaction of the engineer, Wray on two days’ notice might declare the contract void. A trench was made under the contracts by Davis, who employed the hands and supervised them ; defendant had no control.over them. Plaintiff fell into the trench and was injured. Held, that Wray was not liable to the plaintiff for the injury. 5. Painter v. Pittsburg, 10 Wright 213, followed.

Error to the Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1875, No. 148. This was an action on the case, commenced February 6th 1874, by William W. Evans against James T. Wray, for an injury received by the plaintiff from falling into a trench in one of the streets of Pittsburg, made for the purpose of laying gas pipes, under a contract by the defendant with the Pittsburg Gas Company. On the 12th of May 1873, the defendant entered into a contract with the Pittsburg Gas Company to excavate a trench in Gas street and Second avenue, &e., so that 20-inch pipe might be laid in it, &e., and place in it the pipes, &c., and afterwards fill the earth around the pipes, &c.; the work to be done to the “ perfect satisfaction” of the company’s engineer; “ to be proceeded in or suspended on any portion when required by the engineer,” and to be completed by the following 15th day of September. It was further agreed: “ That all losses, accidents and damages of whatever kind and from whatever cause, which shall at any time happen to the work or to any person or persons whomsoever, shall be wholly borne and made good by the party of the first part. And should the party of the first part at any time during the pro-, gress of the work, refuse or neglect to supply a sufficiency of materials and workmen, the said party of the second part shall have power to provide materials and workmen, after three days’ notice in writing being given to finish the said work, and the expenses shall be deducted from the amount of contract.” On the 23d of May 1873, Michael Davis entered into a contract with the defendant, by which Davis agreed to do the work which the defendant had contracted to do for the gas company by the contract above mentioned; the contract was in substantially the same terms as the former one. Davis stipulated that he would do the work to the perfect satisfaction of the company’s engineer,' the work to be proceeded with or suspended on any portion of the route as the engineer might direct, and to be completed before the 15th of September then next. Davis to receive monthly 80 per cent, of the amount due at the end of each month, “ until the satisfactory completion of the whole work, when the balance shall be paid to him.” It was further agreed that “ Davis shall bear all losses, damages, fines and recoveries that may happen or be had by reason of the carrying on the said work arising through mistake or negligence or otherwise. * * * .Should the said Davis at any time neglect or refuse to carry on or perform the said work to the satisfaction of the engineer of the Pittsburg Gas Company ; * * * the said Wray shall have the option, at two days’ notice to said La vis, either to declare this agreement on the part of him, the said Wray, no longer binding, but forfeited and made void, or to supply and make good the omissions or non-performances of said Davis, and to deduct the cost thereof from the contract price; * * * that unless the said Davis fully completes and satisfactorily performs the whole of the aforesaid work, on or before the 15th day of September next ensuing, that he will pay the said Wray $25 per day for each day thereafter that the said work is incomplete,” &c. The case was tried, February 11th 1875, before White, J. The plaintiff testified that on the night of October 9th 1873, he fell into the trench as he was passing down Second avenue and broke his leg; that it was not guarded, and there was no light; the hole into which he fell was where the people walked. There was other evidence corroborating the plaintiff as to his fall, the condition of the trench, &c. John Davis testified that Michael Davis was superintending the job; that defendant frequently paid witness on orders from Michael Davis; Davis gave men orders on witness for groceries. J. H. McElroy, the engineer of the gas company, testified that he was at the work frequently; Davis was so slow witness had frequently to go there ; he finally dismissed Davis. Defendant gave evidence that there were lights and barricades at the trench on the night of, the 9th of October 1873; also that Davis employed and paid the workmen. The defendant testified that the work was commenced by Davis in June or July; witness paid none of the men and had no control over them; the work was done under Davis and under the superintendence of the engineer of the gas works ; witness had nothing to do with the work except to pay Davis; he told Davis he must obey the instructions of the engineer; witness had no control of the work after Davis got the contract; witness never gave any orders. Plaintiff, in rebuttal, gave evidence that there'were no lights nor barricades at the trench on the night of the accident. The following are points of defendant, all which were refused:— 4. If the jury believe from the evidence that at the time of the accident the work was being done by Michael Davis, under the direction of the engineer of the gas works, their verdict should be for the defendant. 5. If the jury believe from the evidence that the negligence, if any, in not putting up barricades and lights at the ditch on the night of the accident, was caused entirely by Michael Davis and the men in his employment, their verdict should be for the defendant. 6. If the jury believe from the evidence that the defendant had assigned or sub-let this contract to Michael Davis, and that at the time of the accident and before it, the defendant had no control over Davis or his men, the verdict should be for the defendant. The verdict was for the plaintiff for $2735. The defendant moved for a new ;trial; the court refused the motion, on condition that the plaintiff would release all damages above $2000; the plaintiff having so released, judgment was entered on the verdict for the plaintiff for $2000. The defendant took a writ of error. He assigned the refusal of his points for error.