Northwestern Pacific Railroad v. Currie

KNIGHT, J.

Defendant appeals from an adverse judgment in the sum of $481.88 in an action to recover damages for the alleged negligent injury to plaintiff’s right of way fence, committed by defendant while performing certain highway construction work- under a written contract with the county of Marin. The appeal is taken on the judgment-roll alone, and the points urged for reversal are that the complaint does not state facts sufficient to constitute a cause of action, and that the findings do not support the judgment. As will hereinafter appear, both points are based upon the single legal contention that the liability for the injury,. if any there was, was upon the county of Marin and not the defendant as contractor.

In paragraph II of the complaint it was alleged in substance that defendant, “while purporting to act under and pursuant to a contract theretofore entered into” by him with the county of Marin, constructed certain improvements, fills and paving upon the highway adjacent to and parallel with plaintiff’s right of way, along which plaintiff maintained a fence. And in paragraph III of the complaint it was alleged that in performing said construction work defendant wilfully and negligently piled dirt and other materials against plaintiff’s fence and did thereupon and

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thereafter wilfully and negligently remove, bend and otherwise injure said fence to plaintiff’s damage in the sum of $481.88'.

Besides denying many of the allegations of the complaint the answer sets up a separate defense (par. V) alleging that “the improvement work and fills mentioned in Paragraph II of plaintiff’s complaint and all work performed by plaintiff upon the road or highway mentioned in plaintiff’s complaint were done and performed under and pursuant to that certain contract entered into between the County of Marin, State of California, and said defendant, a copy of which contract is marked ‘Exhibit A’ annexed hereto and made a part hereof, and that all said work was performed under the direction and to the satisfaction of the County Surveyor of said County of Marin.” In this connection the contract provided that defendant should furnish all the labor and materials, and perform the work therein mentioned “in a good and workmanlike manner, under the direction and to the satisfaction of the County Surveyor of said County of Marin . . . and in accordance with and located at the places and in the manner specified in the plans and specifications . . . which are made a part of this contract.”