Pearson v. M. M. Potter Co.

SHAW, J.

Action to recover damages alleged to have been sustained by plaintiff as a result of stepping into a manhole negligently left open by defendant. This manhole was in the sidewalk adjoining the Van Nuys hotel on Fourth street, in the city of Los Angeles. The hotel was under the control and management of defendant, and the manhole, when not used as a means of access to the basement of the hotel, was closed by an iron cap or cover placed upon the opening. It is alleged that on May 29, 1906, defendant removed this cap and negligently permitted the manhole to remain open and unguarded, and that while thus left open and unprotected plaintiff, while walking along the sidewalk, stepped or fell into the same, thereby, without any fault on his part, receiving the injuries for which he asks damages.

In addition to denying the allegations of the complaint, defendant, by its answer, avers that it had no control over the manhole and nothing whatever to do with its use or management, for the reason that it had, prior to the alleged injury to plaintiff, and ever since, by a special contract, given to one Thomas J. Dunnigan entire control, supervision and charge of the porter service in said hotel; that under such contract said Dunnigan had full power to employ and discharge porters of the hotel and pay them out of his own funds, and to control their conduct and labors in and about

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the hotel, and that as to such porter service he was an independent contractor; that if said manhole was left open, as alleged by plaintiff, it was so left open by one of the porters employed by and under the control of said Dunnigan, and not by any person connected with the management of the hotel, or under the control or direction of defendant.

The case was tried before a jury, which rendered a verdict in the sum of $2,000, the judgment for which, upon the hearing of defendant’s motion for a new trial, plaintiff consenting thereto, was reduced to the sum of $1,844. The appeal is from the judgment thus modified, and an order of the court denying defendant’s motion for a new trial.

Appellant’s chief contention is that the court erred in refusing to submit to the jury the question whether or not Dunnigan was an independent contractor, but, on the contrary, did instruct the jury that at the time of the injury he was a servant and employee of the defendant, and that any act of negligence, either by Dunnigan or the men so employed by him, was the act of defendant.