Berberich v. Ebach

Opinion, Mr. Justice Green: In the case of Chartiers V. Gas Co. v. Lynch, 118 Pa. 362, we said: “.The case was thus made to turn upon the acceptance by the company of work so negligently and improperly done that the company knew, or ought to have known, that it was unsafe and positively dangerous. To such a submission there could be no possible objection, if there was any evidence from which the jury were warranted in finding that the work had been accepted by the company and taken off the hands of the contractor.” In that case there was no question that the work had been done by an independent contractor, and that it was his negligence that caused the injury complained of. Had there been any evidence showing that the gas company bad accepted the work of its contractor, with a knowledge of imperfections or defects which produced the plaintiff’s injuries, the company would have been held liable, although the work was done by one who was clearly an independent contractor, having exclusive control of the work. In the present case it was alleged, and there was ample evidence to sustain the allegation, that the stone wall on which the brick wall of the building was erected, was so defectively constructed that it caused the brick wall to fall and damage the plaintiff’s building. The defendants Ebach were relieved of responsibility by their contract with the builders, Striebechers, and the builders claimed to be relieved by the application of the same doctrine to their sub-contract with Grow, the ma [174] son who laid up the stone wall. That sub-contract is a very meagre one. It is all contained in the following words: “ M. Striebecher & Brother: I promise that I will do the mason and stone-cutting work for Mr. Ebach’s house, according to plan and specifications, for the sum of four hundred and ninety-eight dollars, ($498.) Ammond Grow.” It may be gravely questioned whether this is such a subcontract as takes away from the principal contractor the whole supervision and control of the mason and stone-cutting work, upon which a high brick wall was to be erected by the principal contractor, but as that question is not necessarily now before us, and has not been considered or argued, we express no opinion upon it. But on the question of the acceptance of the stone wall by the principal contractor, in such circumstances as that he must or may be presumed to have knowledge of its defects, we think there was sufficient testimony to submit it to the jury. The substance of the testimony was that the bulging of the stone wall, and forcing it back to its place, caused the brick wall to fall, or at least that it constituted such a defect in the stone wall as to make it quite unsafe to erect a brick wall on top of it. The bulging of the stone wall was attributed directly by different witnesses to the filling in of earth and stones behind it, followed by warm weather, which caused the mortar to soften, and thus bulge the wall out of position. Now, this filling in was no part of the work to be done by the mason, and in point of fact it was done by the Striebechers’ men. This was testified to both by Grow and Striebecher, who were witnesses for the defendants, and was very clearly established. In addition to this, however, it was most distinctly proved that Striebecher knew all about the condition of the stone wall when he directed the laying of the joists and the erection of the brick wall. Grow, defendants’ own witness, testified: “ Mr. Striebecher came to me, and he says: ‘ There is a piece of wall that is crooked, and the architect wont allow me to lay the brick upon it, and what would we do about it ? ’ I went down and stretched a line, and it was about twenty-five feet long and about two and one half feet high. This just went down to the cellar a little; and I told Striebecher — I says: ‘Just wait a day or two, the weather will get soft again, and the wall will [175] come back again.’ And so he says: ‘Do you think it will?’ I says: ‘ Yes.’ ” Albert Striebecher, one of the defendants, testified as follows: “ Q. Your attention was called to this stone-work before you put the joist on, wasn’t it? A. I seen it myself. Q. Your carpenters saw it before you came there? A. Not my carpenters; I seen it myself. Q. Didn’t you go there because your carpenters stopped work on it ? A. No, sir; I sent my men, and they did start the joist. I says: ‘ Better wait till I come back. I will see the architect before we put the joists down, if he is satisfied to put the wall on it.’ .... Q. Didn’t you tell Schuetzinger that wall would have to come down ? A. If he couldn’t get it straight, it will have to come dovm; couldn’t leave it bulged, and build a house on it. Q. He did straighten the wall? A. Yes, sir. Q. What caused the wall to bulge out? A. Well, it was braced, and they went to work and filled in the wall with dirt in the back. Q. Filled in back of the wall with dirt? A. Yes, sir. Q. Who did that? A. Mr. Grow had two men of mine, two laboring men, and I left several, so they always could dig a little; might need it in the foundation; and so afterwards they filled in. Q. Those laboring men of yours filled in behind the wall? A. Yes, sir. Q. And that caused the wall to bulge out? A. Yes, sir. Q. Didn’t that wall bulge out nearly the whole length of the wall, but more in the place where he braced it back? A. No, not all along. Q. How many feet of it bulged out? A. About twenty-five feet or so. Q. How much of it did he push back ? A. He pushed it all back. Q. Pushed the whole twenty-five feet back ? A. Yes, sir. Q. Did the braces extend along the whole twenty-five feet? A. Yes, sir; he had them braced, and after — You know it was winter-time. Q. And then he used crow-bars, didn’t he ? A. He braced it back; put the braces against it, and took the dirt out, and so it went back. I didn’t stay there. Q. You knew it was being done ? A. Yes, sir.” As a matter of course, this testimony proves conclusively that the Striebechers knew all about the condition of the wall; and, more than that, that they knew of and were satisfied with the measures that were taken to remedy the defect, approved of them,.and accepted the wall, and proceeded to lay the joists and erect the brick wall on top of it. Both Grow and Striebecher [176] thought the bracing of the wall was sufficient to restore it, and make it sufficient for the brick wall; but there were plenty of witnesses who thought otherwise, and so testified, and the question raised by this testimony was a pure question of fact for the exclusive consideration of the jury. The question whether the Striebechers were liable for the injury done, was largely a question whether a responsibility which rested prima facie upon them was shifted over to others. The learned court below thought that it was conclusively shifted by the testimony, and therefore directed a verdict for the defendants. In this we think there was error, for the reasons we have stated. In the case of Allen v. Willard, 57 Pa. 374, there was a very similar situation. The principal contractors were sued as well as the owners. The injury was occasioned by one falling into an excavation in the sidewalk made for a building which was being erected. The owners were held not to be liable, as the builders were independent contractors, but they in "turn sought to shift the reponsibility upon a sub-contractor who did the excavating. We held the evidence was not sufficient for that purpose, and that the principal contractor was liable. Agíeew, J., in delivering the opinion, said: “ As to the excavation, Samuel Sloan testified, and this was all he said: ‘ I did the excavating for this building under a contract with Allen & Bros.; I did the whole of it.’ Not a word was asked of these witnesses as to the terms of their contracts, or how they were to do the work, whether under the control and direction of the Al-lens or otherwise. The fact that each had a contract with the Al-lens for his particular work did not, in itself, separate the Allens from its supervision and control. To pay for stone-work by the perch, or to do the whole excavation under a contract, does not necessarily destroy the relation of master and servant. ” In the case of Homan v. Stanley, 66 Pa. 464, which was also a case of injuries received from falling into an excavation for a cellar on a sidewalk, we said, Read, J.: “ The owner is, undoubtedly, legally and morally liable for such negligence, unless he can shift the responsibility clearly upon some one else, and this is necessary for the safety of our fellow-citizens, particularly in populous places. In the present case he has not shifted the responsibility, and he is therefore liable.” In this case, the plaintiff, without any fault of his, has sustained serious damage [177] by tbe falling of the wall of a building in course of erection. The owner successfully escapes liability on the ground that the work was being done by an independent contractor. That contractor, who undoubtedly erected the wall that fell, seeks also to escape liability by shifting it over upon some one else who he claims was a sub-contractor. But, as we have seen, he accepted the work of that sub-contractor, knowing well its condition; and it is alleged, and much proof was given on the trial tending to show, that the work thus accepted was so defectively done as that it caused the injury complained of. In addition to that, the defendant contractor’s own men did the work which, it is also alleged, caused the defect in the wall erected by the sub-contractor. Upon both of these allegations we think there was ample evidence to take the case to the jury on the question of the liability of the principal contractor. The assignments of error are all sustained. Judgment reversed, and venire de novo awarded.