Prowell v. City of Waterloo

McClain, J.

By reason of the extension of the parking along a paved street in defendant city it became necessary to construct extensions of cement walks at street-intersections from the sidewalk to the new curb line, and this the defendant undertook to do by employing one Faus as a contractor to furnish, the material and to do the work required for constructing of cement such extensions of the walks. At the place where the accident happened which resulted in plaintiff’s injury the contractor, having constructed the cement extension of the walk to the curb line, surrounded it by stones and by a wire, supported "about two feet from the ground, to keep passers from going upon the cement and injuring it while it was hardening. Plaintiff, a passer after dark along the sidewalk thus extended, *691 not seeing the wire, ran against it, and was caused to fall, receiving the injuries complained of. No warning lights had been put out to enable passers to see the danger.

1. Municipal corporations street improvements: negligence: liability for acts of pendent contractors. I. It is contended for appellant that under the evidence which shows Paus to be an independent contractor it was error in the court to refuse to direct a verdict for the defendant. It may be conceded that even a municipal corporation is not liable tor the negligence of an independent contractor in & 7 , , A, , .. carrying on the work, it such negligence consists some fault or omission wholly collateral to the performance of the work to bé done, and not necessarily involved in doing it. Thus, as argued for defendant, the negligence of the contractor in the use of dynamite or other blasting material (Herrington v. Lansingburgh, 110 N. Y. 145 , 17 N. E. 728 , 6 Am. St. Rep. 348 ; Uppington v. New York City, 165 N. Y., 222 ( 59 N. E. 91 , 53 L. R. A. 550), or in piling lumber in the street (Evansville v. Senhenn, 151 Ind. 42 ( 47 N. E. 634 , 51 N. E. 88 , 41 L. R. A. 728, 68 Am. St. Rep. 218 ), would not render the city liable for resulting injury, although the contractor 5 was employed in performing work on the streets. But on the other hand, the duty of the city to maintain its streets in a safe condition can not be delegated to an independent contractor so as to relieve the city from liability for failure to perform this duty. Bennett v. Mt. Vernon, 124 Iowa, 537 ; Pace v. Webster City, 138 Iowa, 107 ; Denver v. Rhodes, 9 Colo. 554 ( 13 Pac. 729 ); Beatrice v. Reid, 41 Neb. 214 ( 59 N. W. 770 ); Omaha v. Jensen, 35 Neb. 68 ( 52 N. W. 833 , 37 Am. St. Rep. 432 ); Park v. Commissioners, 3 Ind. App. 536 ( 30 N. E. 147 ); McAllister v. Albany, 18 Or. 426 ( 23 Pac. 845 ); St. Paul v. Seitz, 3 Minn. 297 ( Gil. 205 , 74 Am. Dec. 753 ).

We think the erection of barriers in the sidewalk involving danger to passers at night, unless warning lights *692 are put out, is necessarily incident to the reasonable and proper performance of the work of constructing a cement sidewalk, and is not a purely collateral matter as to which the city may rely upon an independent contractor. To construct such a sidewalk involves an obstruction to travel, constituting an actionable nuisance if the proper precautions to avoid injury are not taken. The duty of the city to keep its streets in a reasonably safe condition can not be avoided by turning over to an independent contractor the work of constructing sucb walk. It is argued that without barriers the freshly constructed walk would not have been dangerous, the only consequence likely to result being that passers without knowledge of the condition of the walk would damage it by going over it while in that condition; but, as we think, the city was bound to know that the usual precautions to avoid damage to sucb walk by passers would be taken by constructing some kind of barriers, and it was the duty of the city to see that these barriers, as constructed, did not constitute a menace to the safety of persons who, in the exercise of reasonable care, were attempting to go along its walks.

2. Same: notice to city of danger. II. In an instruction the jurors were told that it was not necessary for plaintiff to prove that the defendant city bad notice that the sidewalk at the point of the alleged accident was in a dangerous condition. In view ox the preceding discussion it is enough . . . to say that there was no error m this instruction with reference to the facts of the case. The city through its proper officer directed the construction of the work, and that construction necessarily involved the erection of temporary barriers of some kind which would obstruct the use of the sidewalk. It was the duty of the city, therefore, to see that danger to passers should be prevented by proper warning lights. Brusso v. Buffalo, 90 N. Y. 679 ; Omaha v. Jensen, 35 Neb. 68 ( 52 N. W. 833 , 37 Am. St. Rep. 432 ); Beatrice v. Reid, 41 Neb. *693 214 ( 59 N. W. 770 ); Jefferson v. Chapman, 127 Ill. 438 ( 20 N. E. 33 , 11 Am. St. Rep. 136 ).

_ 3. Personal inígSfixc™" sive verdict. III. It is made a ground of motion for a new trial that the verdict for $2,000 damages was excessive, and showed such passion and prejudice on the part of the jury that the verdict should be set aside. The court directed the jury not to allow anything £or permanen£ injuries, or for future pain and suffering, or for medical attendance, or for loss of earnings, for the reason that there was no evidence tending to show such elements of damage, and the jurors were therefore confined to a consideration of the physical disability and the pain and suffering of the plaintiff during the time intervening between the accident and the trial, which was about eighteen months. It appears, however, that during that time plaintiff, who was previously a strong and active woman, was rendered quite helpless; that she suffered several attacks of prostration which seemed to imperil her life, and that her pain and suffering were great. So much is left to the discretion of the jury in the matter of compensatory damages for pain and suffering and impairment of health and physical vigor that we do not feel justified in interfering with the verdict. The judgment is affirmed.