Cotter v. Lindgren

California Supreme Court Mar 30, 1895 No. No. 19502Published

Before: Vancliee

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Holding. The court held that the complaint was fatally uncertain for failing to allege the excavation was unguarded at the time of the accident, and that the defendant was not liable under respondeat superior because he lacked the power of supervision over the workers who performed the excavation.

Issues

Whether the complaint was fatally uncertain for failing to allege the excavation was unguarded at the time of the accident.
Whether the defendant was liable for the negligence of workers who were under the direction and control of a third party.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It was essential to plaintiff’s cause of action that the pit was not sufficiently guarded and lighted at the time plaintiff fell into it, but this fact is not expressly alleged”

“It is well settled that, in order to hold the master responsible for the negligence of a servant, he must have the power of supervision of the servant’s conduct.”

Synopsis

Negligence—Leaving Excavation Unguarded—Uncertainty in Pleading.—A complaint stating that a pit was dug in the sidewalk of a highway by the defendant at a certain date, and that the same was left without protection, barriers, or lights, to warn persons of danger, and alleging that the injury to the plaintiff occurred on a subsequent date, but not stating that at the time of the alleged accident the pit was not properly protected and guarded with barriers and lights sufficient to apprise of danger persons traveling on the highway or sidewalk, is subject to a demurrer for uncertainty in not specifically alleging the unguarded condition of the excavation at the time of the accident.

Id.—Defective Findings.—Findings of fact, from which it cannot be inferred that the excavation was not sufficiently guarded and lighted at the time of the accident, are defective, and such defect is ground of reversal, where the evidence upon that subject was substantially conflicting.

Id.—Master and Servant—Excavation Made for Contractor by Servants of Subcontractor.—Subcontractor not Liable.—Where a building contractor is required by his contract to furnish all materials and do all the work including all necessary excavations for the foundation, with areas under the sidewalk to give light and ventilation to the cellar, and a subcontractor has only contracted to do the brickwork, including the walls inclosing the areas under the sidewalk, and the men employed by the subcontractor excavated the areas for the contractor, and under his direction, the relation of master and servant does not exist between the subcontractor and the men who excavated the areas in the sidewalk in regard to that work, and it is not material that the servants who did the work were in his general employ for other purposes.

Id.—Duty to Guard Areas—Completion of Contract.—Where areas are excavated under a contract it is not the duty of the contractor to guard them after the job is completed, unless he has agreed to do so.

Vancliee, C. Action for damages alleged to have been suffered by the plaintiff in consequence of negligence of the defendant in leaving unguarded an excavation which he had made in the sidewalk of a street in the town of Bakersfield, into which plaintiff fell and was injured.

The plaintiff had judgment for sixteen hundred dollars, from which and an order denying a new trial the defendant has appealed.

1. The appellant contends that the court erred in overruling his general and special demurrer to the complaint. The following is a copy of the complaint:

“ That on or about the 9th of February, 1893, defendant, by his servant, wrongfully dug a pit in the sidewalk of a certain highway known as 19th street, in the town of Bakersfield, Kern county, state of California, and negligently left the same open and exposed during the night-time, without any protection, barriers, or lights to warn citizens or travelers of danger.

“ That on or about the 10th of February, 1893, the the plaintiff was lawfully traveling on said street wholly unaware of any danger, was precipitated into said excavation without any fault or negligence on his part. Whereby his left hip was dislocated, and he was made sick & sore & lame, & was confined to his bed, & had to use crutches for a long time, & was compelled to abstain [605]from work for sixty days, to his damage one hundred & twenty dollars ($120), and he has been • compelled to incur an expense of three hundred dollars in medical services, nursing, & medicines. That ever since said accident he has suffered great bodily pain and anguish of mind, & that he is stiff & lame, & his health, strength, & activity has been & will be permanently injured and impaired, to his damage in the sum of ten thousand dollars.

“ Wherefore, plaintiff prays judgment against defendant in the sum of ten thousand four hundred & twenty dollars, with costs of suit.”

The following are the grounds of demurrer: “1. That said complaint does not state facts sufficient to constitute a cause of action; 2. The complaint is uncertain in this: The complaint states that the said pit was dug on or about the ninth day of February, 1893, and that the same was left without protection, barriers, or lights to warn citizens of danger; the accident complained of is alleged to have occurred on or about the tenth day of February, 1893, a time subsequent to the ninth, but it is not stated that at the time of the alleged accident the said pit was not properly protected and guarded by barriers and lights sufficient to apprise persons traveling on said highway or sidewalk of danger.”

Cotter v. Lindgren

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