John Macer and Sophia Macer recovered a judgment in the superior court of Cook county for $1502.90 against Peter J. O'Brien, doing business as Peter J. O'Brien Co., and the city of Chicago. The suit was instituted to recover for injuries to plaintiffs' building and contents, alleged to have been caused by the negligent breaking up of portions of a street pavement. An appeal was taken to the Appellate Court, which affirmed the judgment, and the cause is here on certiorari.
The Sanitary District of Chicago is a municipal corporation independent of and separate from the city of Chicago. At the request of the sanitary district the city council of the city passed an ordinance authorizing the sanitary district at its own expense to construct and maintain a discharge sewer in certain streets in Chicago for a distance of about fifteen miles. One of the streets is Lavergne avenue, upon which the Macer property abuts. The ordinance provides that the sanitary district shall indemnify the city against all claims for damages by reason of the construction and maintenance of the sewer and restore *Page 488 to their former condition of usefulness all pavements disturbed by the work. Pursuant to the authority granted by the ordinance the sanitary district let a general contract for the construction of the improvement to Dowdle Bros., a corporation. Dowdle Bros. excavated the trench, laid the pipe and back-filled the excavation. On Lavergne avenue the trench was approximately thirty inches wide, the east line of which was about twenty-eight feet west of the property line. They sub-let the restoration of the pavement to Peter J.O'Brien Co. This contract called for the removal and replacement of that portion of the pavement outside the trench lines damaged by the work. In removing the damaged portion of the pavement in Lavergne avenue a large and very heavy iron ball was alternately hoisted and dropped by a machine from a height of eight or nine feet to the pavement, so as to break it up for easy handling. Plaintiffs contend that the vibration produced by dropping the ball cracked the foundation, stucco superstructure and plastering of their house and also the sidewalk in the yard; that the city had notice of the injurious effects of the work during its progress and that it failed and refused to stop such use of the iron ball.
There is some disagreement in the testimony as to the month when the ball was used, but the date is immaterial, because the testimony as to the damages relates to the time when work with the ball was actually done and to no other time.
Plaintiffs in error argue the following questions of fact: (1) Whether O'Brien had sub-let the particular work to O'Connor as an independent contractor; (2) whether plaintiffs' property was damaged by the work; (3) the amount of any such damage; and (4) whether or not the city of Chicago had notice of the damaging method employed in doing the work. These questions were fairly submitted to the jury. It decided them in favor of defendants in *Page 489 error and judgment was entered upon the verdict. That judgment was affirmed by the Appellate Court. Therefore we are precluded by the finding of facts in those courts from any investigation of such questions.
The only question left for us is the one of law, which pertains to the liability of plaintiffs in error under the definite facts with which we are confronted and by which we are bound. Under those facts O'Brien is plainly liable, but it is contended that the city is not liable because it was not a party to any contract for the work and had no voice or control over it. As a general rule, a municipality can not be held liable ex delicto unless the tort was committed by its agents or servants under circumstances such as would bring the doctrine of respondeat superior into operation. An exception to this rule is where the contract requires the doing of work which is intrinsically dangerous in and of itself, no matter how carefully it may be performed. In cases of that kind, such as the boring of tunnels, the deep removal of large areas of lateral support, the use of high explosives, etc., the principal remains liable, regardless of the intervention of an independent contractor. (2 Dillon on Mun. Corp. (4th ed.) sec. 1028 et seq.) The liability of a municipal corporation for the acts of an independent contractor acting under a contract with a licensee has not been directly before this court. The general rule is, that where a municipal corporation grants a license authorizing work in its streets for a purpose which is proper and lawful, the blame for a resulting injury must attach to the person who mis-uses or abuses the license and not to the municipality. There is an exception to that rule and to the rule announced by Dillon — i. e., where the municipal authorities have notice of the negligence of the licensee. (Warsaw v. Dunlap, 112 Ind. 576, 11 N.E. 623.) Where an injury results from the negligent mode in which the licensee of a city exercises a privilege granted to him, the city can be held liable for a resulting injury only *Page 490 on proof of knowledge or notice to the city and subsequent acquiescence in the use. (Cohen v. New York, 33 Hun, 404.) The general rule of non-liability of a municipality for the acts of an independent contractor has no application where, after notice of the defect or damage resulting from the contractor's negligence, the municipality fails to take proper measures to remedy the defect. 43 Corpus Juris, "Mun. Corp." 947.
In Johnson v. City of Philadelphia, 236 Pa. 510,84 A. 1014, an abutting property owner brought a suit against the city for damages to his building by fire as a result of large quantities of inflammable material being permitted to lie exposed in the streets for several weeks. It was held that the duty of a city, in exercising control and supervision over its streets, to an abutting property owner is analogous to the duty which an individual land owner owes to the premises of his neighbor.
In Jones v. McMinimy, 93 Ky. 471, 20 S.W. 435, the plaintiff was injured by a rock thrown up by a blast set off in the course of the work of excavating a cellar. It was held error to direct a verdict for the defendant on the ground that the work was being done by an independent contractor. In stating the principles which were to control the case in the second trial the court said: "Where he, [the employer,] as a prudent man, has no reason to believe that the act contracted to be done is a nuisance but is in itself lawful, and it turns out during the progress of the work that it is necessary to create a nuisance in order to do the work, then the contractee is not liable for injuries to third persons resulting from the nuisance before he had notice of its existence. But in such case, upon receiving notice, it would be his duty to take such reasonably prompt and efficient means as are within his power to suppress the nuisance, else he will be responsible for injuries to third persons resulting from the nuisance, after notice." *Page 491
In Schumacher v. City of New York, 166 N.Y. 103,59 N.E. 773, a trench for laying pipe in a street was dug under a permit from the city and the excavated dirt was thrown into the gutter, where it lay two days, damming the gutter and a culvert, of which the city had notice. A storm filled the gutter and the water ran into a basement on abutting premises, ruining the goods of plaintiff. It was held that the city, having notice, was liable.
While a city has control of its streets it has no more power over them than a private individual has over his own land, and cannot, under a claim of public convenience, be permitted to exercise that dominion to the injury of another's property in a mode that would render a private individual responsible in damages without itself becoming responsible. (Nevins v. City ofPeoria, 41 Ill. 502; City of Pekin v. Brereton, 67 id. 477;Stack v. City of East St. Louis, 85 id. 377.) In the Pekin case the right to recover for damage to lots owned by the plaintiff by reason of grading done in the construction of a railroad on a public street was sustained. In the East St. Louis case the damage arose from the construction of a bridge approach under a permit from the city. The right of an adjoining property owner to recover damages for the removal of lateral support by a licensee of the city of Chicago was upheld in Barnard v. Cityof Chicago, 270 Ill. 27.
The rule is well settled that a municipality is bound to exercise its control over streets for the protection of the public. That duty extends to abutting property. If the municipality permits work intrinsically dangerous to be done in a street it is liable for any resulting damage to the public or to abutting property even without notice that such damage is being done, and it cannot escape liability for damages occasioned by a dangerous method employed in work not of itself intrinsically dangerous if it has notice of such dangerous method and thereafter fails to prevent it. It is not liable for momentary negligence of persons *Page 492 performing work not intrinsically dangerous, under a contract which leaves the contractor the general control over the work. In such cases the liability, if any, attaches when the municipality has notice of the dangerous character of the method being employed and fails to take proper steps to prevent the further prosecution of such method. When a municipal corporation fails to perform some legal duty it cannot exonerate itself by showing that an independent contractor had been engaged to perform that duty. It is not made liable for the negligence of the contractor but is held liable for failing to perform the duty imposed upon it by law. (19 R. C. L. "Mun. Corp." 1140.) In this case, the facts being settled that the city had notice during the progress of the work that plaintiff's property was being damaged thereby and that it failed and neglected to stop the damaging method employed, it became liable for the resulting damage after such notice.
During the trial, Mrs. Macer, in response to a question by the court, testified that O'Brien told her, in a conversation over the telephone, that he was insured and if any damage was done they would take care of it. The court denied a motion to strike the reference to the insurance company. In this the court erred. We have frequently condemned such errors and we have no intention of modifying those rulings. However, it is apparent that upon another trial the omission of that statement would not cause a different verdict to be returned. The error in this instance should not work a reversal of the judgment.People v. Weir, 295 Ill. 268; People v. Murphy, 276 id. 304.
The third instruction given at the request of the plaintiffs told the jury that the city was under a duty to use reasonable care to regulate the use of the street, and the law did not absolve it from such obligation because the construction may not have been done by the city itself. Under the facts in this record the instruction announced *Page 493 a correct principle of law. Welch v. City of Chicago, 323 Ill. 498; Town of Normal v. Bright, 223 id. 99.
We observe no reason for disturbing the judgment of the Appellate Court, and it is affirmed.
Judgment affirmed.