Donovan v. Oakland & Berkely Rapid Transit Co.

Vanclief, C. Action to recover damages for a personal injury alleged to have been suffered by plaintiff through the negligence of the defendant—a private corporation. The cause coming on to be tried by a jury, at the conclusion of plaintiff’s evidence in chief, the defendant moved for judgment of nonsuit, which was granted; and plaintiff appeals .from the judgment and from an order denying him a new trial.

That the evidence was sufficient to prove that defendant fell into an open hole in Grove street in Oakland township, in the night-time, and thereby suffered the injury complained of (fracture of the pelvis or hip bone), and that Grove street is a public street, there is no question. Nor is there any question that defendant caused the hole to be dug, and that it was unguarded by any light or otherwise, to warn travelers of the danger of falling into it, during the night of the accident. It appears, however, that the hole into which plaintiff fell was one of five hundred postholes dug by Spence and Bryant under a contract with defendant, in which holes defendant intended to set poles for the support of electric wires for its electric railroad, along and upon Grove and other streets, for which road a franchise had been granted to defendant by the county of Alameda.

The record shows that the motion for nonsuit was made on the following ground only:

“That it appears by the testimony that the holes were dug by an independent lot of contractors, and that the relation of master and servant did not exist between [247]Spence and Bryant and the company; unless it did— unless there was that relationship of agent and principal, or superior and subordinate, defendant cannot be held liable.”

The following is a copy of the written contract under which the hole was dug by Spence and Bryant for the defendant:

Oakland, November 16, 1890.

Oakland and Berkeley Rapid Transit Go.,

Gentlemen: We will dig 500 postholes, more or less, for your company along the route of your road on Shat-tuck avenue, and also on Grove street. Said holes to be from 5 to 6 feet deep according to instructions cf your superintendent, and placed where he may designate. The holes are to be 14 inches square, and of sufficient size to admit of poles 11 x 11 being placed in them, and room to tamp well. The whole work to be subject to the approval of your superintendent. Consideration to be one dollar for each hole dug and accepted by your superintendent. 75 per cent of the work performed to be paid each Monday, and 12 holes to be dug each day, the work to commence at once. Yours,