Carrick v. Southern Power Co.

Hoke, J., after stating the case: The governing authorities of a town may not absolve themselves of the duty of proper care and supervision as to the condition of its streets and sidewalks, and when they authorize work to be done on them which is essentially dangerous or which will create a nuisance unless special care and precaution is taken, they are chargeable with a breach of duty in this respect, whether the work is being done by a licensee or by an independent contractor. Bailey v. Winston, ante, 252, and authorities cited, more especially Bennett v. Mount Vernon, 124 Iowa, 537; Brusso v. City of Buffalo, 90 N. Y., 697, and see an instructive case on this subject, City of Baltimore v. O'Donnell, 53 Md., 110. The same principle holds as to the obligations of licensees and independent contractors, doing work of the kind suggested, that is, when the work that is being done for their benefit or by their procurement is of a kind to create a nuisance unless special care is taken, they are charged with the duty of properly safeguarding it, and may not relieve themselves by delegating the duty to others. Bridge Co. v. Steinbach, 61 Ohio St., 375, reported also in 76 Amer. St., 675; City of Anderson v. Fleming, 160 Ind., 597; Spentz v. Schultz, 103 Cal., 208; Curtis v. Kily, 153 Mass., 123; Village of Jefferson v. Clapman, 127 Ill., 438; Cameron Mill Co. v. Anderson, 98 Texas, 156; Rock v. Construction Co., 120 La., 831; McCarrier v. Hollister, 15 S. D., 366; Mohl Independent Contractors, sec. 75. In Rock v. Construction Co., supra, the Court held as follows: “As a municipal corporation would itself be liable to a citizen for injury sustained by reason of its reducing a sidewalk to a dangerous condition, it is evident that the privilege granted by it to a public utility company of making excavations therein cannot authorize such company to leave the excavations so made unguarded and to dispense with all precautions, whereby those who are rightfully using the *381 sidewalk may be warned of tbeir existence. Nor can tbe company in such case escape liability on tbe plea tbat an excavation, made under tbe authority conferred on it and for its account and benefit, bas been made by an independent contractor.” In Bridge Co. v. Steinbach, supra, Marshall, J., delivering tbe opinion, said: “Tbe weight of reason and authority is to tbe effect tbat where a party is under a duty to tbe public or third person to see tbat work tbat be is about to do or have done is carefully performed so as to avoid injury to others, be cannot, by letting it to a contractor, avoid bis liability in case it is negligently done to another’s injury”; and, in tbe citation to Mohl, supra, tbe author, in reference to street excavations, says, correctly, we think, tbat “digging trenches in highways or across footpaths bas been considered by many, if not most, courts so dangerous as not to be assignable so far as liability is concerned. An incorporated company undertaking to lower tbe grade of its road while in tbe receipt of tolls, and while tbe road is open for travelers, is bound to guard tbat part retained for public use, to warn travelers of danger threatened by obstructions, and by suitable devices to direct them in tbe proper route; of which duties it may not divest itself by shifting tbe responsibility to'others.” A contrary doctrine which seems to- have prevailed in certain cases relied upon by defendant, as in Hackett v. Telegraph Co., 80 Wis., 187; Smith v. Simmons, 103 Pa., 32, etc., are expressly disapproved in some of tbe decisions to which we have referred, and are, we think, contrary to tbe great weight of authority. Tbe position chiefly relied upon by defendant, tbat it is relieved of responsibility, if any existed, because tbe work was being done by an independent contractor, may not therefore be sustained. Tbe bole, 2 feet square at tbe opening and 4 or 5 feet.deep, on tbe edge of a sidewalk, extending partly in and leaving only a space of 3 to 5 feet for pedestrians to pass, going to or from tbeir work, along an unligbted street, comes well within tbe principle stated, and defendant bas been properly held responsible for tbe neglect established and its consequences. Tbe evidence hardly presents tbe question of contributory negligence, for tbe only testimony we find, on tbe part of de-1 *382 fendant, tending to fix knowledge of tbe existence of tbe bole on plaintiff, also tends to sbow tbat tbe bole was being- covered over; bnt if it were otherwise, tbe question was submitted under tbe principles recognized as sound in Russell v. Monroe, 116 N. C., 721, and there is no error, to defendant’s prejudice, in having referred tbe matter to the jury’s decision. In Neal v. Marion, 126 N, C., 412, tbe claimant, with full knowledge of conditions and contrary to tbe general custom, bad voluntarily chosen to go along an abandoned and neglected walkway when there was a good safe way provided on tbe opposite side of tbe road, and tbe case has no proper application to tbe facts presented here. There is no error, and tbe judgment on tbe verdict is affirmed. No error.