If a proper defense' had been made by the owner when Reynolds brought his action against him, and recovered, (53 Ill. 213,) the owner would have been exonerated, on the authority of Scammon v. City of Chicago, 25 Ill. 424. He did not make a proper defense, and has been subjected to the payment of a judgment he might have avoided, and now seeks to be reimbursed by action against the real tort-feasor. His right to do so is not lessened by the fact that he has been so subjected.
These premises were under the exclusive control of the contractor, as the evidence pursuades me to believe, and though he may have performed his work upon the cellar and upon the building in a workmanlike manner, it was a duty incident to his contract to do all the work he had contracted to perform in such a manner as to insure, at least not to jeopardize, the safety of passers-by, and this included proper safeguards about the excavation.
The justice of the case is clearly with appellant, and though not entirely concurring in all the reasoning of the opinion, I concur in reversing the judgment and remanding the cause.