(dissenting). It is undisputed that the work of restoring the pavement over the refilled trench was, at the time of plaintiff’s injury, being done for the defendant by an independent contractor.
Ordinarily, liability for injury on account of the negligent act of an independent contractor does not fall upon the person who has employed the contractor to do the work; but there is a well recognized exception to that rule, which is to the effect that, where the work to be performed is necessarily dangerous or creates a nuisance, then it can not be delegated so as to shift liability for any injury that results therefrom.
The majority finds this case to fall within the exception, and in this I think they- are clearly in error.
The exception has been recognized by this court in numerous decisions, beginning with the case of St. Louis, I. M. & S. Ry. Co. v. Yonley, 53 Ark. 503, where it was said:
“If one employs another to perform a work which from its nature is necessarily dangerous to the property of a third person, the employer can not escape liability for the injury thereby done. In such cases the injury flows from the doing of the act as its natural consequence, and not from the manner in which the act is done. ’ ’
Another way of stating the exception is that, where one owes a public duty, responsibility can not be shifted by delegating it to another.
Judge Dillon, in the last edition of his work on Municipal Corporations (5 ed., vol. 4, § 1723) states the rule with respect to work done in public streets as follows :
“Where the work contracted for necessarily constitutes an obstruction or defect in the street, of such a nature as to render it unsafe or dangerous for the purpose of public travel, unless properly guarded or protected, the employer * * * where the injury results directly from the acts which the contractor engaged to perform, is liable therefor to the injured party. But the employer is not liable where the obstruction or defect in the street causing the injury is wholly collateral to the contract work, and entirely the result of the negligence or wrongful acts of the contractor, subcontractor, or his servants. In such a case the immediate author of the injury is alone liable.”
Another clear statement of the rule is found in the opinion of the Supreme Court of the United States delivered by Mr. Justice Clifford in the case of Water Company v. Ware, 16 Wall. 566, as follows:
“Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do-, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party * * * Common justice requires the enforcement of that rule, as if the contractor does the thing which he is employed to do the employer is as responsible for the thing as if he had done it himself, but if the act which is the subject of complaint is purely collateral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the work to be done.”
Now, when the duty which defendant, in temporarily occupying- the street, owed to the public and the particular work which it delegated to the contractor is analyzed, it seems clear to me that the alleged act of negligence was in the performance of a collateral act for which the defendant is not responsible. It occupied the street for the purpose of laying its gas-mains, and the trench was dug for that purpose. It owed the public the duty of refilling- the trench and restoring the pavement to its original condition, and was responsible for any injury that resulted either from the exposed condition of the trench or any obstacle that necessarily resulted from the work in restoring the pavement. This duty could not be delegated to another, but its responsibility must, under the law, be confined to an injury which resulted from necessary obstructions, and not merely from collateral acts. If the. contractor had been guilty of negligence in failing to properly restore the pavement or in failing to properly guard the open ditch before the work of restoration was complete, then defendant would be liable, because that was a duty which it oAved to those who use the streets. But under the contract the defendant exercised no control Avhatever over the contractor in the particular manner in which the Avork was to be done. Though it was contemplated that sand and graAml should be used, it was not a part of the contract that it should be placed in the street, nor was it necessary that it should be placed there. The question of placing the sand and gravel in the street Avas purely collateral. It was merely one of the methods Avhereby the preparation was made for doing the work. It certainly was not necessary to place the gravel in a - place where it would obstruct the street. It might have been placed betAveen the trench and the east curb; or4 it might have been placed upon the curb and the sidewalk, or upon some abutting lot. It might have been hauled and unloaded as it was needed Avithout being piled in the street at all. Those were matters which were, under the contract, left to the free and unrestrained action of the contractor himself and concerning which the defendant had no control over him. All that the contract required was that the contractor should restore the pavement, and he was permitted to go about assembling the material in any way that he saw fit.
The case of Sanford v. Pawtucket Street Railway Co., 19 R. I. 537, is directly in point. There an independent contractor was employed to construct a street railroad, and in doing so the contractor negligently stretched a rope or wire across a street in the city of Pawtucket, which rendered the highway dangerous to travellers and caused an injury. The court, after discussing the rule as to liability for the act of independent contractors, said:
“The defendant made no agreement with the contractor as to the particular manner in which the road should be constructed or the trolley wire erected. That is to say, the defendant did not authorize the contractor to place, stretch or maintain a wire or rope across the street, in the manner complained of. He was simply authorized to construct thg road, thus leaving the manner of doing the same to his skill and judgment. Moreover, the work authorized to be done was not in itself a nuisance, nor was it necessarily dangerous or injurious. It was authorized by law. The manner in which it was done was the sole cause of the injury complained of. Hence, the obstruction or defect created in the street was purely collateral to the work contracted to be done, and was entirely the result of the wrongful or careless acts of the contractor or his workmen; and in such case it is well settled that the employer is not liable.”
Another case directly in point is that of Hackett v. Western Union Telegraph Company, 80 Wis. 187, where aq independent contractor dug a hole in a street which caused the injury complained of, and the court, in holding that the employer was not responsible, said:
“Nor does the case come within the well recognized exception to such general rule, to the effect that where the performance of such contract, in the ordinary mode of doing the work, necessarily or naturally results in producing the defect or nuisance which caused the injury, then the employer is subject to the same liability to the injured party as the contractor. * * * In the ease at bar the railroad company was not required by the contract to dig any hole in a travelled public street, much less to leave the same open and unguarded at night.”
Many other cases cited in appellant’s brief illustrate what should be termed collateral acts for which the employer of an independent contractor is not responsible.
I think, according to the undisputed testimony, the alleged act of negligence was committed in the performance of a purely collateral act for which the defendant was not responsible and that the judgment should be reversed and the cause dismissed.
But even if it can not be said that the evidence is undisputed on this point, there was, to say the least of it, abundant testimony which warranted the jury in finding that the placing of the obstruction in the street was a collateral act for which the defendant was not responsible, and the court erred in refusing to submit that question to the jury and in telling the jury broadly in its instructions that “if the defendant or any contractor employed by it did place obstructions of building or paving materials in said streets and failed to use reasonable caution to light the same at night, * * * and that the failure to provide such lights was the proximate cause of the injury and was due to the negligence of defendant or its servants or employees,” that the defendant was liable.
Mr. Justice Woon concurs in the views here expressed.