O'Hale v. City of Sacramento

By the Court, Rhodes, J.: A sewer was being constructed in one of the streets of Sacramento by Fuller, under a contract entered into by and between him and the city; and in the prosecution of the work, he had made an excavation which extended a part of the way across K street. The excavation was left by him, at night, without any light or barrier ,to warn travelers of the existence of the excavation, except a slight barrier at the southern end of the excavation. The plaintiff, while riding along K‘street, was precipitated into the excavation and sustained serious personal injuries. The Court ordered a nonsuit.

The question as to the liability of the city for injuries sustained under circumstances like those shown by the record in this case, is not new in this Court. The Act of .March 21, 1868 (Stats. 1867-8, p. 221), requires the sewers to be constructed under contracts to be let, as therein provided. The contractor, in performing the work, is not the agent or servant of the city; and any negligence in the performance of the work, is his negligence, and not that of the city; and the city is not liable for injuries occasioned by such negligence. Such is in the rule laid down in James v. San Francisco, 6 Cal. 528. The same rule is applied in cases where both parties to the contract are private persons. (Boswell v. Laird, 8 Cal. 469; DuPratt v. Lick, 38 Cal. 691.) The rule ought not now to be disturbed, except for the most cogent reasons; and we are not satisfied that the better reasons sustain the opposite rule.

Judgment and order affirmed.

Mr. Chief Justice Wallace did not express an opinion.