Canal Construction Co v. Clem

Hart, J., (after stating the facts). The court told the jury that the defendant was under no duty to replace the bridge, but that, having undertaken to do so, it would be liable to the plaintiff if the accident was caused by its negligence in replacing the flooring of the bridge without nailing it down. All the witnesses testified that the floor of the bridge was relaid without nailing it down. The witnesses for the plaintiff testified that this was done by the defendant, and the witnesses for the defendant testified that they had nothing to do with replacing the flooring on the bridge. They only replaced the heavy timbers, and left the flooring to be replaced by those who intended to use the bridge. The general rule is well established that an independent contractor is not liable for injuries to a third person occurring after the contractor has completed the work and turned it over to the owner and the same has been accepted by him, though the injury resulted from the contractor’s failure to properly carry out his contract. In Thompson on Negligence, § 686, the rule is stated as follows: “Subject to some qualifications, among them the cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons, the general rule is that, after the contractor has turned the work over and it has been accepted by the proprietor, the contractor incurs no further liability to third parties, by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition is shifted to the proprietor. The contractor remains liable, if at all, only to the proprietor for a breach of his contract. ’ ’ As sustaining the general rule, we cite the following-cases : Young v. Smith & Kelly Co. 134 Ga. 475, 4 Ann. Cas. 226; McCrorey v. Thomas, 109 Va. 376, 17 Ann. Cas. 373; Albany v. Cunliff, 2 Comstock (N. Y.), 165; Curtin v. Somerset (Pa.), 12 L. R. A. 322; Devlin v. Smith, 89 N. Y. 470; 42 Am. Repts. 311; Thornton v. Dow, 60 Wash. 622; 32 L. R. A. (N. S.) 968; and O’Brien v. American Bridge Co. 110 Minn. 364, 32 L. R. A. (N. S.) 980. An able and exhaustive opinion was written by Judge Jaggard in the case last cited. All the principal eases bearing on the general rule and the exceptions to it are cited and reviewed. In that case, five or six weeks after the acceptance of the bridge it 'Collapsed while the plaintiff and others were crossing over it. The evidence for the plaintiff tended to show that the bridge was so defective as to be immediately dangerous to the safety of those crossing it, and that the defects were so hidden or concealed that a reasonably careful inspection would not have disclosed them and the dangers resulting from them. The evidence showed that the fall of the bridge was caused by defective piers and an insecure foundation. The court said that the bridge company could not have avoided knowing the character of the underlying soil and of the imperfect materials used and the improper methods employed in the construction of the foundation and the piers. The dangerous condition of the foundation was concealed by the waters above it, and the piers were defective by reason of rotten cement which was also hidden from ordinary observance. The danger in the use of the bridge was immediate, and the court said that the jury was justified in finding that, within a short time after use, the bridge must fall; and that the use of the bridge would be injury and probably death to persons who would attempt to cross over it. Hence it was held that the facts established by the plaintiff made out a case for the jury on the question of negligence, within the exceptions to the general rule above stated. An exception to the general rule was recognized by this court in the ease of Southern Express Co. v. Texarkana Water Co., 54 Ark. 131. In that case it was held that one who digs a trench in a public street is liable for an injury resulting from the negligent performance of the duty to restore the street to the condition it was in before the excavation, as where he fails to anticipate and provide for the natural effect of rains upon the earth excavated and replaced. In that case the rainfall came in the ordinary course of nature and displaced the newly filled earth. The defendant was bound to have known that this would be the natural consequence of its negligence in failing to properly replace the earth. The defendant knew that, if not properly replaced, the earth would sink in the street after the first rain, and thereby create a condition that would be immediately dangerous to the traveling public, if not an actual nuisance. Hence it came within the well-recognized exception to the general rule. In the later case of Memphis Asphalt & Pav. Co. v. Fleming, 96 Ark. 442, the general rule itself was recognized and the facts held to bring the case within its application. In that case a construction company, under its contract with an improvement district, constructed a sidewalk along a branch without erecting a guard rail or barrier to keep travelers from stepping or falling into the branch. The foundation of the action was the negligence of the construction company in not placing a guard rail to warn travelers against danger. The court held that the facts brought the case within the general rule, and that there was no liability on the part of the construction company. The court further held that the rule does not require a formal acceptance of the contractor’s work, and that the liability of the contractor will cease with a practical acceptance after the completion of the work. We think the facts in the present case bring it -within the general rule. Conceding that the flooring of the bridg'e was not nailed down and that the stringers were not level, it cannot be said that this defective 'condition made the bridge -so immediately and certainly dangerous that the Canal Construction Company ought to have known that the use of it would be attended by imminent danger to those attempting to pass over if. In this connection we must take into consideration that one of the bents was washed out some time after the replacement of the bridge, and that the fact that the flooring wag not nailed down was obvious to any one. This condition had existed for six months after the bridge had been rebuilt, and during all this time it was being used for the purpose of hauling lumber and other materials across it. Its defective condition was in no wise concealed from the traveling public. The Canal Construction Company in no sense had any control over it. It was not required to repair the bent, which was injured by logs floating down during a freshet after the bridge had been replaced. Thus it will be seen that it was not shown that the defendant did work which was, or should have been, known to be imminently dangerous to persons who were to make use of it; nor was there a concealment of such dangerous condition. Under the facts, when considered in the light most favorable to the plaintiff, it cannot be said that the work done by the defendant.on the bridge constituted a nuisance per se, or that it was replaced by the defendant in a manner so negligently defective as to be immediately and imminently dangerous to third persons who might use it. It results from the views that we have expressed that the judgment must be reversed, and, it appearing that the case has been fully developed, no useful purpose could be served by remanding it for* a new trial, and the cause of action will be dismissed here.