Snow v. Marian Realty Co.

LANGDON, J.

This is an action for damages for injuries to property. In 1927 defendant Marian Realty Company commenced to construct a concrete building near plaintiffs’ building. Defendant Golden Gate Iron Works contracted to place the structural steel and defendant Adam Arras Company contracted to do all the concrete work. The steel contractor used a donkey-engine to hoist the steel. The concrete contractor piled sand and cement near the building. Plaintiffs brought an action against the Marian Realty Company and the two contractors, alleging that smoke from the donkey-engine and sand and cement from uncovered piles were carried by the wind to his building,

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discoloring it, and necessitating repainting of the same at the conclusion of the building operations. The first cause of action in the complaint was framed on the thebry of negligence; the second alleged that the acts of defendants constituted a nuisance.

Upon the trial a nonsuit was granted as to the two contractors, but judgment was given for plaintiffs against the defendant Marian Realty Company in the sum of $278.

The first ground of said defendant’s appeal is that the triál court was in error in holding it liable for the acts of independent contractors. .There is, of course, no question but that ordinarily no liability attaches to an owner for the acts of an independent contractor. (See

Green

v.

Soule,

145 Cal. 96 [78 Pac. 337].) In this case, however, two things appear which prevent the application of that rule. In the first place, defendant Marian Realty Company had on the job its own superintendent, who was at all times cognizant of conditions there. In the second place, the company had itself procured permits under the city building ordinance, which required that the party using the streets under such permit should prevent sand, dirt or other materials from being blown away and from interfering -with the carrying on of business or the enjoyment of property. Another city ordinance forbids the creation of a smoke nuisance. In view of these facts, it cannot be said that the sole recourse of plaintiffs must be against the other two defendants. The duty to prevent the occurrence of the acts complained of was, by the terms of the ordinances, as much a duty of the Marian Realty Company as it was of the contractors; and violation of the ordinance cannot be excused on the ground of delegation of that duty.