Hundhausen v. Bond

Ryan, C. J. We cannot hold the earth excavated from the premises of the defendant Atkins, without any purpose of using it in his building or of restoring it to his premises, but placed in the adjacent street for final removal elsewhere as surplusage, to be building material within sections 12 and 13 of the city ordinance offered in evidence. What is permanently removed to give place to a building, is surely not material for the building. Indeed, conceding the power of the common council to regulate the use of streets for building material, and to grant permits for that purpose, and to limit those to four months or less as may be necessary, we may well question the power of the city to license such a deposit of earth in a street, beyond a reasonable time for its removal. The ordinance in question assumes no such power; is silent on the subject; and we are of opinion that it was properly excluded by the court below. It is true that some sand was excavated, placed in the street, and used for mortar. But this appears to have been after the plaintiff’s accident, and can have no bearing on the conditions of the accident. Aside from the question on the ordinance, there was no serious difference, on the argument, between the counsel, as to the — 37 — right of the defendant Atkins, and those acting by his authority, to use half of the street in front of his premises for the temporary deposit of the earth excavated; and there is little ground for such difference. He has an estate in fee to the center of the street, and “ has aright to the enjoyment of any use of his estate, consistent with the servitude to which it is subjected.” When, in a city, an owner of an abutting lot has “ occasion to build, and for that purpose to dig cellars, he may rightfully lay his building materials and earth within the limits of the street, provided he takes care not improperly to obstruct the same, and to remove them within a. reasonable time.” The general principle thus accurately stated by the supreme court of Massachusetts in O'Linda v. Lothrop, 21 Pick., 292, has been recognized by this court as early as in the case of Gardiner v. Tisdale, 2 Wis., 153, and in many subsequent cases. So that either of the defendants, acting in the right of the defendant Atkins, might lawfully deposit the excavated earth on the half street next the lot of the latter, provided the street was not improperly obstructed by it, and provided that it was removed in a reasonable time. But this temporary impediment of the highway is licensed only so far as it is reasonably necessary, and must be placed in the most convenient, manner for safe passage over the highway, by night and by day, and be guarded by due precautions against accident to passengers, and must not be continued longer than is necessary. Clark v. Fry, 8 Ohio St., 358; Storrs v. Utica, 17 N. Y., 104; Chicago v. Robbins, 2 Black, 418. It was claimed by the plaintiff that the excavated earth in the street was necessarily a nuisance ab initio. It was claimed by the defendants that the earth, originally deposited of right, could not afterward become a nuisance by negligence in guarding it against consequent accident, or by unnecessary delay in removing it; that these were questions of negligence or diligence in the exercise of a right. We can sanction neither proposition. — 38 — The first has been already sufficiently answered. For the second, if the earth was unnecessarily and dangerously extend ed into the street, or raised to an unnecessary and dangerous height, or insufficiently guarded against accident to passen-ers, or suffered to remain an unnecessary time, then and from thence tbe conditions of the license given by the law to put it there were broken, and the license quoad hoc, ceased, and the earth in the street was as much a nuisance as if placed there by a stranger to the title, without color of right. Both points are expressly adjudieated’in Clark v. Fry, and Chicago v. Robbins, above cited, and in many other cases. It is claimed in effect, by the plaintiff, that the earth was deposited in the street, not in the manner most convenient for the .use of the street by being extended at the least height along the side of the street, but in the manner most convenient for the deposit and removal of the earth itself, by being confined and so extended into the street, and raised to a height which added to the danger of its presence in the street, and that due precautions against consequent accident were not taken. It is enough to say that there was evidence tending to support this claim, and these were questions for the jury, under proper instructions. The obstruction of the highway permitted is essentially temporary, and must be removed in a reasonable time; that is, it must be continued no longer than is reasonably necessary; it need not be removed as soon or as fast as may be absolutely possible, but it must be with ordinary care and diligence. It is claimed by the plaintiff that the earth was not removed from the street in a reasonable time, but was unnecessarily and negligently permitted to remain in the street, pending the excavation and before the plaintiff’s accident. This was a question of fact for the jury, under proper instructions. It appears from the bill of exceptions that the deposit of earth in the street began on Friday, and that the earth re mained there until the accident happened on Monday night. — 39 — And it also appears that the learned judge of the court below misapprehended the evidence, and told the jury that the digging commenced in the forenoon, and that the accident occurred in the evening of the same day. And he added that “the law regards that as not an unnecessary length of time for the dirt to he kept there.” The mistake of fact apparently led the learned judge into a mistake of law, as applicable to the actual evidence; and the charge, on the fact and law taken together, is clearly erroneous. The defendant Bond claimed that he was the mere servant of his codefendant, not responsible for doing his master’s work, under his master’s orders, the work not being per se unlawful. The defendant AtJcins, on the other hand, claimed that he employed the other defendant to do the work as an independent contractor, over whom he had no control, and that therefore he was not responsible for what his contractor did. Both the defendants claimed, as we understand, that in either case there could be no joint liability of the defendants to the plaintiff for the injury. And the court below seems to have adopted this view. We cannot concur in this broad and unqualified conclusion. It assumes that the relation' between the defendants, in the act complained of, was necessarily and simply of the one or other character, whereas it might well be not of either; and both defendants, quoad the public and the plaintiff, might well be principals. It also assumes that, in the position taken by the defendant Bond, the work was lawful throughout, which is bégging one question of fact for the jury to have found, under proper instructions. And it assumes that, in the position taken by the defendant Atkins, an employer cannot be liable in any case for the acts of his independent contractor. Such we do not' hold to be the law. There is, indeed, a general rule to that effect, but it has at least one exception. We find the rule, with the exception, well stated by the supreme court of the United States in Robbins v. Chicago, 4 Wallace, 657, and adopt — 40 — it as applicable to this case: “ When the obstruction- or defect-created or caused 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 when the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts, is equally liable to the injured party.” See also Storrs v. Utica, supra. There is no conflict between this rule and that stated in the opinion of this court in Harper v. Milwaukee, 30 Wis., 365, cited in the brief submitted for the defendant Athins. The question on which the exception to the rule turns, was not in that case, and the opinion merely cites the general rule, without reference to the qualification of it stated in Robbins v. Chicago. It is not necessary to consider the precise bearings of this rule on the facts of the present case, in all its aspects. It is enough to say now that there was evidence, which it would hardly be proper for us now to discuss, tending to charge both defendants, as to the public, as principals in the deposit of earth in the street, rendering both accountable for its proper disposition and for due precautions against accident from it, and for its removal in a reasonable time. And this was a question of fact for the jury, under proper instructions. After stating to the jury the positions of the defendants, above noted, the learned judge before whom the cause was tried, instructed the jury that, in either case, they could not find against both defendants. In our view of the law applicable to the case, this was erroneous; But it is argued that, conceding all these positions, the plaintiff had,' against all erroneous rulings on the trial, his verdict and judgment against the defendant Atkins; and that therefore his exceptions cannot avail him here. This argument fails, on two grounds. — 41 — The plaintiff was entitled to go to the jury, on proper instructions, against both defendants, and to a judgment against both, i f he had obtained a verdict against both. And he is still so entitled, in our view of the case. There was, under the instructions given, a verdict for the plaintiff against one defendant, and for one defendant against the plaintiff. On this verdict, several judgments were entered at several times. We consider this to have been wrong practice. There must, indeed, be judgment for the plaintiff against the one defendant, and against him for the other defendant; but there can be but one judgment record, and the double judgment should be signed as one. See form in appendix to Burrill’s Practice, section 824. If either party had delayed judgment to the prejudice of the other, the court below could have afforded a prompt remedy. The code does not vary the practice. See Bacon v. Comstock, 11 Howard’s Pr., 197; Catlin v. Latson, 4 Abbott’s Pr., 248. And we must treat these two judgments as entered together. If the plaintiff be entitled to recover, he is entitled to compensatory damages only. And if we should affirm the judgment against the defendant Atkins, and reverse the judgment in favor of the defendant Bond, as it was contended by the former that we might do, the absurdity of two verdicts, in different amounts of compensatory damages, for the same injury, in the same action, against different defendants, with judgments upon them, might not only well follow, but it might also well happen that the plaintiff would be twice compensated for the same injury. If entitled to recover at all against both defendants, he is entitled to but one verdict, and one judgment for his damages, and one satisfaction. It follows that both judgments in the cause must be reversed, and the cause remanded for trial against both defendants. By the Court. — It is so ordered.