Spence v. Schultz

McFarland, J. This is an appeal by defendant from a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial.

This is an action to recover damages for personal [211]injuries sustained by respondent, and caused by bis falling into a deep excavation in a sidewalk on a lot and premises owned by appellant, and situated on the corner of Washington and Kearny streets, in the city and county of San Francisco. At the time of the accident appellant was constructing a building on said lot, and an excavation about fourteen feet deep had been made in the sidewalk, and left unprotected by any barricades or lights around it. About ten o’clock, p. m., of the evening of November 19, 1889, the respondent, a stranger in the city, while walking along Washington street, fell into said excavation, and was seriously injured. He was not guilty of contributory negligence.

The main ground upon which appellant contends for a reversal is, that he had made several different contracts wúth several different parties by which each of said parties was to do the work, and to furnish materials necessary to the completion of particular parts of said building; that said parties were independent contractors, and not servants, of appellant; and that, therefore, the doctrine of respondeat superior does not apply, and the parties who made said excavation under said contracts are alone answerable for any injury which respondent may have sustained in the manner alleged in the complaint.

Counsel on both sides have argued the case in their briefs with great industry and ability, and have cited many authorities. This was highly commendable in counsel, and has aided the court to see the case from many points of view; but damage cases of this class come here quite frequently, and we cannot be expected in each casé to elaborately review the whole field of authorities applicable to such cases.

Counsel for respondent argues with much force that the contracts relied on by appellant have so many conditions and reservations, and give to appellant so much revisory and controlling power over the contractors as to the employment of workmen, choice of materials, etc., as to take the case entirely out of the rule invoked [212]