(after stating the facts). To reverse the judgment, counsel for the defendant invoke the general rule that the employer is not responsible for the negligence of an independent contractor. They concede that there are exceptions to the general rule, and that one of them is that where a person causing something to be done, the doing of which casts on him a public duty, he can not escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. They do contend, however, that the piling of the gravel in the street without a light was purely collateral to the work contracted to be done, and was entirely the result of the wrongful acts of the contractor, Hale, and therefore he alone is liable. We can not agree with their contention. The city council has entire control of the streets of the city and it was its duty to the public to keep them unobstructed and safe for passage in the ordinary modes of travel.
In recognition of its duty to the public, the city council provided in the ordinance that the defendant, in the work of laying and repairing its pipes and. appliances, should not unnecessarily obstruct or interfere Avith the use of the streets of the city. The defendant when it began the work of tearing up the streets of the city for the purpose of laying its gas mains assumed all the obligations of the city to the public, and it became its duty to exercise ordinary or reasonable care in the laying and repairing of its mains so as to prevent such work from obstructing the street or endangering those using it. In Chicago City v. Robbins, 2 Black (U. S.) 418, and again reported under the style of Robbins v. City of Chicago, 4 Wall. (U. S.) 657, Bobbins was held liable for damages by a pedestrian upon the streets of Chicago falling into an area which his contractor had made before a building he Avas erecting in that city. In the first opinion, the court said: “Bobbins’ duty was absolute to see that the area dug under his direction and for his benefit should be safely and securely guarded and, failing to do so, his liability attached and the jury should have been told so.”
In the opinion on the second appeal, it is said: “The import of the decision of this court in reversing the former judgment of Ihe circuit court, and remanding the cause for a new trial, was that the party contracting for the work Avas liable in a case like the present, where the Avork to be done necessarily constituted an obstruction or defect in the street or highway which rendered it dangerous as a way for travel and transportation, unless properly guarded or shut out from public use; that in such cases the principal for whom the work was done could not defeat the just claim of the corporation or of the injured party by proving that the work which constituted the obstruction or defect Avas done by an independent contractor.”
In the case of Hawver v. Whalen, 49 Ohio St. 69, 14 L. R. A. 828, it Avas held that the owner of a city lot, who made an excavation in the sideivalk for coal cellars, to be used in connection with the building, was bound to guard it with ordinary care, and that this duty could not be delegated to an independent contractor employed to construct the cellar. The court said:
“There is much innate justice in a rule of law that declines to permit one who causes work to be done, the performance of which though not necessarily injurious to the persons or property of others, yet necessarily creates conditions inimical to their safety, to exonerate himself from all duty towards those whom he had thus exposed to danger.”
In the case of Woodman v. Metropolitan R. R. Co. 149 Mass. 335, 14 Am. St. Rep. 427, the court held:
‘ ‘ Where a city railroad company is engaged in laying a track in a public street, and negligently leaves rails projecting beyond a temporary barrier inclosing the place where the track is being laid, it is liable in damages to one, who, travelling at night, and exercising due care, is injured by coming in contact with such projecting rails, notwithstanding the fact that the injury was sustained at other than a regular street crossing, and that the work was being done by an independent contractor. ’ ’
In the case of Village of Jefferson v. Chapman, 11 Am. St. Rep. 139, the Supreme Court of Illinois said:
“Another exception to the general rule relieving an employer from liability for an injury occasioned by an independent contractor is where the party causing the work to be done is under a primary obligation imposed by law to keep the subject-matter of the work in a safe condition. The principle upon which this exception is predicated is, that where a duty is so imposed, the responsibility for its faithful performance can not be avoided, and that the party under such obligation can not be relieved therefrom by a contract made with another for the performance of such duty.”
The facts of the present case, we think, bring it within the exceptions we have noted. Walnut Street was paved with wooden blocks and was a public street over which, there was much travel. The defendant, with its own servants, tore up the street for the purpose of laying its mains, and piled the blocks with which it was paved next to the east curb of the street. After it had laid its mains, and refilled the trench, Hale, under his contract with the defendant, began the work of repaving the street. Before the paving blocks could be replaced in the street it was necessary to prepare and lay a concrete foundation for them to rest upon. The concrete foundation was made by placing a mixture of gravel and cement upon the dirt, and it was necessary that the gravel and cement should .be mixed near the place where it was to be spread upon the surface of the street. To do this, it was also necessary to pile the gravel in the street preparatory to mixing it with the cement for the purpose of constructing the concrete foundation. The piling of the gravel in the street for this purpose necessarily rendered the street unsafe for night travel. This was a condition which did not depend upon the care or negligence of the contractor, but the danger arose from the very nature of the work contracted for and could only be averted by placing lights or danger signals to warn those travelling the street at night that the obstruction was there. That is to say, the performance of the work in the usual and only practical way it could be performed, necessarily created a condition which would bring wrongful consequences unless guarded against, and inasmuch as the contract could not have been performed by Hale except under the right of the defendant, the defendant was under a primary obligation imposed by law to keep in safe condition the subject-matter of the work, which in this instance was the street. The injury sustained was caused by the gravel, which had been left in the street, and which came within the duty of the defendant to persons travelling on the streets to see that they were kept safe.
In such a case, the responsibility for the faithful performance of the work can not be avoided, and the defendant being under such obligation can not be relievecl therefrom by a contract made with another for the performance of that duty. In cases like the present, where the employer owes a public duty to keep the subject-matter of the work in safe condition, it is only where the negligence complained of is entirely collateral to and not a probable consequence of the work contracted for that the employer can escape liability; and we hold that the negligence complained of was not collateral. The question of negligence was submitted to the jury under proper instructions and the judgment will be affirmed.
McCulloch, C. J. and Wood, J. dissent.