Young v. Trapp

Opinion .of the court by JUDGE NUNN Affirming. The appellee, a child 10 years of age, recovered a judgment against appellants for the sum of $400 damagesl for personal injuries. The facts in the case are as follows: The Cumberland Telephone & Telegraph Company entered into a. contract with appellants for the erection of a brick building on the corner of Breckinridge street and Baxter avenue* in Louisville, Ky. The appellants sublet the brickwork to one John Gray. While Gray was in the performance of his work, this child was passing along Baxter avenue by the building, and a brick fell from the second story upon her head, severly injuring her. There is no issue as to her injuries, or that the injury was caused byi the negligence-of the employes of Graw; nor is there any complaint as to the amount of the verdict. The sole contention of appellants is that they are not liable therefor, for the reason that Gray was an independent contractor; that he had the-sole control and management of the brickwork of the building and the employment of hands to perform this work, and. the sole control of them while in the performance of this labor; that it was the duty of Gray to erect and maintain barricades or other means to prevent persons: from passing along the pavement by the side of this building for the.ir protection while persons were performing labor [816] on the building; and that the failure to perform this duty was the negligence of Gray, the independent contractor, and not the negligence of the appellants. The contention of appellants is the general doctrine, but does not apply to cases where the thing done or omitted to be done is of itself a nuisance, or will necessarily result in a nuisance, if proper precautionary measures are not used. In the case of Matheny v. Wolff, 2 Duv., Í38, in discussing the principle herein involved, the court said: “The liability of the proprietors has been universally recognized where the relation of master and servant or principal and agent existed; but where an independent' contractor intervened there has been a contrariety of opinion. If the owner of real estate suffers a nuisance to be created or continued by another on or adjacent to his premises, in a prosecution of a business for his benefit, when he has the power to prevent or abate the nuisance, he is liable for an injury resulting to third persons. ... Is a perpendicular excavation up to the very edge of the pavement and sidewalk of a street in a populous city, without placing sufficient safeguards or barricades to admonish passers-by after nightfall, a nuisance? Any act of an individual done to a highway, though performed on his own soil, if it detract from the safety of travelers, is a nuisance/’ And, after discussing thei facts of the case, continued: “Proprietors have the legal right to excavate their lots for building purposes up to the very edge of the street, and perhaps to encroach on the street, and for this purpose have the right to use that part of the street for a reasonable time to the exclusion of the public. But this legal right must be exercised in a prudent, legal manner and in populous cities the public interest and individual safety imposes responsibilities from which such proprietors can not escape. Neither [817] -can they, by private contract, shift this responsibility upon undertakers or others. Hence the distinction that, when an act must necessarily result in a nuisance unless it be prevented by the proper precautionary measures, thei proprietor is bound to the exercise of such measures, else he must answer in damages for injuries resulting to others from the neglect thereof. No matter what may have been his contract with the undertaker, in such case his responsibility does not depend on the relation of master and servant nor principal and agent, but results from others doing, at his instance, that which must needs result in a nuisance, unless prevented by the appropriate precautions.” To the same effect is the case of Baumeister, etc., v. Markham, 101 Ky., 123, 19 R., 308, 39 S. W., 844, 41 S. W., 816, 72 Am. St. Rep., 397, and, also, Robinson v. Webb, 11 Bush, 477. The only remaining question to be settled is whether the manner of erecting this building, considering its location to the pavement, was necessarily a nuisance. If a nuisance, the appellants are liable, if not, the doctrine of the independent contractor applies. In the case of Matheny v. Wolff, supra it is said: “Any act of an individual done to a highway, though performed on his own soil, if it detract from the safety of travelers, is a nuisance.” This case declared that an excavation contiguous to a pavement was a nuisance. We are unable to perceive how it can be argued with any degree of consistency that to render a public highway unsafe by such an excavation without barricades to protect the public is a nuisance, while to render the same highway equally unsafe by permitting brick, mortar, and other debris to fall upon it from a wall immediately contiguous thereto, without safeguarding by barricades or other means, is not a nuisance. Clearly it can make no dififer [818] ence whether the cause of appellee’s injury came from below or above. If one was a nuisance, the other must he. Wherefore the judgment of the lower court is affirmed. Petition for rehearing by appellant overruled.