Heidenwag v. Philadelphia

Opinion by Mr. Justice Green, If the scaffolding erected on the Girard Avenue bridge, from which the timber fell which killed the plaintiff’s son, was an unlawful structure, the city was guilty of negligence in authorizing its erection, and cannot shield itself from liability by showing that the death of the boy -was due to the negligence of an independent contractor. We are very clear that under the contract which was made between the city and the contracting company which did the work, the contracting company was an independent contractor. By the terms of the contract the company undertook to do the whole of the work, including the purchasing and setting off of the fireworks, for a designated sum to be paid for the entire service. It is true that nothing is said in the contract specifically about the erection of a scaffolding, but the specification annexed to the contract does stipulate that the display is to be made from Girard Avenue bridge, and the mere inspection of the list of pieces to be exhibited proves conclusively that without a scaffolding the exhibition could not take place. The city under the contract could not exercise any control over the work to be done. None of its servants or agents could intervene to take any part in the erection of the proper works, or in the exhibition of the various pieces and designs. On the contrary the company agreed to furnish “ expert artisans ” to do the work of firing, and they also agreed to pay all claims for damages for injuries to persons or property resulting from the fireworks. In the case of Painter v. The Mayor etc. of Pittsburg, 46 Pa. 213, the subject of corporate municipal liability for work done, and the payment of damages for injuries inflicted, by independent contractors, was thoroughly reviewed in an exhaustive and able opinion by Mr. Justice Strong. He showed most clearly that the city, in the circumstances of that case, was not liable. He said amongst other things, “Is the city liable? We think not. The wrong was not done by any servants of the defendants. There is no room for the application of the principle ‘ respondeat superior.’ The defendants had no control over the men employed by the contractors, or over the contractors themselves. They could not dismiss them or direct their work. The excavation was not illegal, and there was a superior to the workmen, to wit, the contractors. There cannot be more than [78] one superior legally responsible. ... It is now settled in that country (England) that defendants, not personally interfering or giving directions respecting the progress of a work, but contracting with a third person to do it, are not responsible for a wrongful act done, or negligence in the performance of the contract, if the act agreed to be done is legal.” In the case of Smith v. Simmons, 103 Pa. 32, this subject again came before us. A ditch was dug in a public street by the license of a borough to lay a water pipe for a citizen. The action was against the owner to recover damages for a personal injury suffered by a woman who fell into the ditch at night because it was insufficiently guarded, and the question was whether the owner was liable or his independent contractor who did the work. We held that the contractor was liable and the owner not. Mr. Justice Gordon, delivering the opinion, said : “ Was the digging of the ditch in the public street of the borough of Susquehanna a nuisance per se ? If not, if it was such a necessary work as was properly licensable by the borough council, then, as the second question, was the defendant chargeable with the negligence of his contractor who had charge of the work? .... If the ditch, dug for and at the instance of, Dr. Smith, was a public nuisance, then he and- all engaged in sinking it were responsible for all damages resulting from it, and the doctrine of respondeat superior is out of the case.” It will thus be seen that if the work itself is without legal authority, the principal is liable as well as the independent contractor, and the question arises what is the character in this respect of the work which was being done ? It is alleged for the plaintiff that the scaffolding was an unlawful structure, and being erected in a public highway was.a nuisance per se. The basis of this contention is an ancient enactment passed in the year 1721, when the state of Pennsylvania was an English province. By the 4th section of the act of August 26, 1721, Brightly’s Purdon, 814, pl. 1, it is provided that, “ If any person or persons, of what sex, age, degree or quality soever, shall fire any gun or other fire-arms, or shall make or cause to be made, or sell or utter, or offer to expose to sale any squibs, rockets or other fire-works, or shall cast, throw or fire any squibs, rockets or other fire-works within the city of Philadelphia, without the governor’s special license for the same, of which [79] license due notice shall first be given to the mayor of the said city, such person or persons so offending, and being thereof convicted before any one justice of the peace of the said city, either by confession of the said party so offending, or by the view of any of the said justices, or by the oath or affirmation of one or more witnesses, shall for every such offense, forfeit and pay the sum of five shillings.” The remailider of the act provides a method of collecting the fine by distress and sale of the offender’s goods, and if that is unavailable, then, by the imprisonment of his body. Doubtless there were reasons in those days, when Philadelphia was a small town and the governor resided within its limits, for requiring that his special license should be obtained whenever fire crackers were to be exploded, or fireworks exhibited. But in the present state of our population and our business affairs it seems rather ludicrous than otherwise, that such a requirement should be considered necessary as preliminary to every display of fireworks that may be contemplated by the city or by private persons. It is doubtful whether any license under this antiquated statute has ever been issued in the history of our commonwealth, and it is certain that it is universally disregarded. The subject is certainly a matter of mere police regulation, and is doubtless within the entire control of the municipal authorities, aud it seems quite odd that when a municipal corporation sees fit to authorize such a display it should be reminded of its lack of power by a reading of this old law which, if it be in force, would subject the city to a fine of five shillings and a distress of its goods, and a possible imprisonment of somebodjq for a violation of its provisions. It is true that this court has decided that this act is still in force, and that its provisions must be observed. In the case of Homer v. Comlth., 106 Pa. 221, we decided that parties who engaged in manufacturing fireworks in the city of Philadelphia, without a license from the governor to do so, were guilty of a violation of this law and became subject to its penalties. But that decision related to another clause of the act than the one in question, and it concerned only the action of individual persons who were-transgressing the provisions of the law. In this case it is the city itself acting in its corporate capacity that is (the subject of consideration. There is nothing unlawful intrin [80] sically in the preparation and exhibition of fireworks by a city acting as a municipality. Unless therefore the terms of the act of 1721 apply to incorporated cities and include them within the prohibitions designated, the erection of the scaffolding in question was not unlawful. We think it very clear that the act was not intended to apply to cities when acting in their corporate capacity. The prohibition of the act extends to “ any person or persons of what sex, age, degree or quality soever.” It will hardly be pretended that such a description embraces municipal bodies. It includes individual persons, living human beings, only. In providing the penalties the act directs that “ such person or persons so offending ” shall be prosecuted and convicted before a justice of the peace and upon conviction shall pay a fine of five shillings. The act further provides for the collection of the fine by a distress and sale of the offender’s goods if he have any, and if not, then by the imprisonment of his body. These penalties and their collection are entirely appropriate to the cases of individual persons, but entirely inappropriate in the case of cities or other municipal bodies. We therefore hold that the act of 1721 does not, in this respect, apply to cities, and that exhibitions of fireworks when conducted under their authority are not unlawful, and hence the work of preparing for them is not unlawful. It was claimed that the city was negligent in not having policemen or other agents at the bridge to warn people off and protect them from danger. But unless it was the duty of the city to prevent any travel on the bridge while the scaffold was being erected, we cannot see how negligence can be imputed in this regard. We certainly do not think it was the duty of the city to suspend all travel on the bridge because an ordinary wooden scaffold was being erected on one side of the bridge. If we should say that in this case, consistency would require that we should say the same thing as to the erection of scaffolds along the streets in any other part of the city, which of course could not be done without practically suspending all the building operations which require the use of scaffolds. The evidence shows that many thousands of persons passed to and fro over the bridge while the scaffolding was being erected, and yet no-other accident than this is shown to have occurred. It certainly was not the duty of the city to have policemen on hand to conduct each [81] foot passenger across the bridge. That would have been impossible on account of numbers, and it would have been ineffective to protect against this accident in any event. No policeman could know, any better than any other person, that this particular accident would or might happen, and therefore could not warn anybody against it. The sidewalks were closed at the ends but the roadway’s were open, and both railway cars and foot passengers were constantly passing and repassing. The stick that caused the death of the child fell in the roadway while it was being handled by the contractors’ workmen. While this may be a very good reason for holding the contractors liable we can discover no reason for holding the city liable. The case bears no analogy to the cases in which permanent or dangerous obstructions to travel are permitted by city authorities to remain in positions where the safety of travelers is imperiled. Judgment affirmed. Stebuett, C. J., Williams and Dean JJ., dissent.