
    Michael Gilhooley vs. Solomon Sanborn & another.
    Suffolk.
    March 10. — 26,1880.
    Endicott & Soule, JJ., absent.
    In an action for personal injuries occasioned to the plaintiff by the caving in of earth on the side of a trench, upon which he was employed by the defendant, who was performing the work under a written contract with a city, such contract is res inter alios, and inadmissible to prove that it was the duty of the defendant to brace the trench.
    Tort for personal injuries. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:
    The plaintiff was employed by the defendant to lay sewer-pipe in a trench in Union Avenue, Jamaica Plain, and, while engaged in such work, was injured by the caving in of the earth on one side of the trench. The trench was not braced; and the plaintiff contended that the accident was occasioned by the negligence of the defendants in failing to brace it.
    The defendants were performing the work under a written contract with the city of Boston, by which they undertook to dig the trenches and lay the sewers in Green Street and Union Avenue, the latter street connecting with the former. Prior to the accident, they had dug the trench and laid the- sewer as far on Green Street as its junction with Union Avenue, and had braced the trench the entire length on Green Street; but there was evidence that the soil in Union Avenue was different from that in Green Street. There was no evidence as to whether the trenches on Green Street and Union Avenue were of the same or different- depth or width. The defendants, prior to the accident, had been at work about a week on the trench in Union Avenue, and had laid the sewer for about 500 feet. No part of this trench had been braced or planked. At the place of the accident, the depth was about seven feet, the width at the bottom about eighteen inches, and at the top about three feet, and the soil was a mixture of loam and sand. There was conflicting evidence as to whether the trench should properly have been braced. The defendants admitted that, if the trench required bracing, it was their duty to brace it. The plaintiff offered in evidence the contract of the defendants with the city, which contained the following provision: “ The trenches shall be thoroughly braced and planked.” The judge inquired of the defendants if they admitted that, if the trench required bracing, it was their duty to brace it; to which they answered that they did. The judge then ruled, that, as the only ground on which the contract could be admitted was as an admission of the duty of the defendants to brace if necessary, and as that obligation was admitted, the contract should be excluded.
    The jury returned a verdict for the defendants; and the plaintiff alleged exceptions.
    
      R. M. Morse, Jr., for the plaintiff.
    
      W. Gaston & C. L. B. Whitney, for the defendants.
   Lord, J.

But a single question is presented in «this case. The plaintiff contends that he was injured in a trench by reason of the sidés’ caving because not sufficiently braced. The defendants admitted at the trial, that, if bracing were necessary, it was their duty to brace. It is immaterial to inquire how this duty devolved upon the defendants, though there seem to be only two modes by which it could be: one mode would be by force of law, because of the obligation on the part of an employer to use reasonable precautions to guard against injury to the workmen in his employment; the other mode would be by contract between the parties. A contract between the defendants and a third party is res inter alios. As between the parties to this suit, it cannot be used as an admission of duty, or of reasonableness or propriety. No man, by entering into a contract with another to perform work for him, agrees, by entering into the contract, either that the work to be done is necessary, or useful, or reasonable, or proper. He has no responsibility for the work, provided it be not illegal nor immoral. These suggestions preclude the competency of the defendants’ contract with the city of Boston, as being res inter alios, and liable, if not calculated, to mislead. The admissibility of that contract being the only question submitted to us, the exceptions must be

Overruled.  