
    Charles McCaughey, Administrator, vs. Benjamin Tripp, City Treasurer of the City of Providence.
    Commissioners were appointed by the city of Providence to build a city hall according to certain plans, with power to employ agents and to make contracts. By one of the contracts they were to furnish at the site of the building centres for brick arches. In fact they put the centres in place, and one of the centres being insecurely fixed, fell and killed A., a laborer employed on the building.
    In an action by A.’s administrator against the city:
    Held, that the act of the commissioners, in setting the centre which fell, was the act of the city.
    Gen. Stat. R. I. cap. 193, § 21, gives an action “ in all cases in which the death of any person ensues from injury inflicted by the wrongful act of another,” if an action could have been sustained at common law had the injury not been fatal.
    
      Held, that the city, through the commissioners, had committed this “ wrongful act,” and . that the words “wrongful act” were not to be construed as referring to the workmen who actually set the centre up.
    Query, whether the words “ wrongful act” would cover a mere omission to perform a duty.
    DEPENDANT’S petition for a new trial.
    Francis McCaughey, the plaintiff’s intestate, was a laborer employed in building the city hall in Providence. He was killed by the fall of a timber centre on which he was standing, and which had been set to turn a brick arch upon. The plaintiff brought this action under Gen. Stat. R. I. cap. 193, § 21, which is :
    “ Sec. 21. In all cases in which the death of any person ensues from injury inflicted by the wrongful act of another, and in which an action for damages might have been maintained at the common law had death not ensued, the person inflicting such injury shall be liable to an action for damages for the injury caused by the death of such person, to be recovered by action of the case for the use of his or her husband, widow, children, or next of kin, in like manner and with like effect as in the preceding five sections provided.”
    The preceding five sections being:
    “ Sec. 16. If the life of any person, being a passenger in any stage-coach, or other conveyance, when used by common carriers, or the life of any person, whether a passenger or not, in the care of proprietors of, or common carriers by means of, railroad or steamboats, or the life of any person crossing upon a public highway with reasonable care, shall be lost by reason of the negligence or carelessness of such common carriers, proprietor or proprietors, or by the unfitness or negligence or carelessness of their servants or agents, in this State, such carriers, proprietor or proprietors, shall be liable to damages for the injury caused by the loss of life of such person, to be recovered by action on the case, for the benefit of the husband or widow and next of kin of the deceased person, one moiety thereof to go to the husband or widow, and the other to the children of the deceased.
    “ Sec. 17. If in such case there shall be no children, the whole of such damages shall go to the husband or widow ; and if there be no husband or widow, to the next of kin, according to the law of this State regulating the distribution of intestate personal estate amongst the next of kin.
    “ Sec. 18. In addition to such action in favor of the widow and kindred of the deceased, a like action may be maintained for damages for such loss of life, by any person having a direct pecuniary interest in the continuance of the life of such deceased person.
    “ Sec. 19. Actions for the benefit of the widow and next of kin of such passenger or person may, in all cases, be brought by the executor or administrator of the deceased, whether such executor or administrator be appointed and qualified as such within or without this State; but where there is a widow only, she may, at her option, sue in her own name.
    “ Sec. 20. To maintain such actions it shall not be necessary first to institute criminal proceedings against the defendants.”
    The declaration charged that the city of Providence, by its agents, so negligently and insecurely set the centre, that it fell and fatally injured the deceased, wbo was exercising due caution.
    Tbe defendant alleged contributory negligence on tbe part of the deceased; also that the contractor or tbe commissioners in charge of the building could not bind the city by their negligent acts ; and claimed that the action could not be maintained under § 21 above given, “ the wrongful act ” of the statute being the act of the workmen who carelessly put the centre in place, not the act of the municipality.
    The jury gave a verdict for the plaintiff, and assessed his damages at $2,500.
    
      July 26, 1879.
   POTTER., J.

It is contended on the part of the city that the negligence which caused the death of Mc-Caughey was the negligence of the contractor and is not chargeable to the city.

The commissioners were appointed to build a city hall according to certain plans and elevations. They were to contract for it in writing, and they did so. They had full authority to employ agents, &c. By the contract the commissioners were to furnish the centres for the arches at the site of the building. The same language is used as to furnishing the brick, &c.

But the commissioners actually did furnish the centres in place. By the written contract they were not obliged to do so, but they did it. And there was no provision in the contract that the contractor should set the centres, although it did contain a provision that he should set the granite and brick.

Now if from any disagreement as to the construction of the contract or for any other reason the commissioners saw fit to assume this duty for the city, we think they had the right to do it. They were generally empowered to build. If their only power was to make a contract and ended there, the case would have been different, and every question arising would have to be referred to the city government itself. But they were to build, and although the work was to be contracted for, they were to superintend it. And it may well be supposed that the commissioners were to have this general power, because in the erection of such a building contingencies might arise which could not be foreseen, and which could not be provided for in the contract, and which must be left to the discretion of somebody. We think it is satisfactorily shown that the negligence was the negligence of the officers and agents of the city, and that the city is liable for their acts. See Chase, Administrator, v. American Steamboat Co. 10 R. I. 79.

James M. Ripley £ Charles E. Gforman, for plaintiff.

Nicholas Van Slych, City Solicitor of the city of Providence, for defendant.

Upon the other point made, that the statute only provides for cases where death ensues from injury inflicted by the wrongful act of another and that this is not such a case, we only think it necessary to observe that here was an act negligently done, and we think it comes within the spirit of the law. If it was a case of mere and entire omission to perform a duty it would be different, and we do not intend to decide that point. But here the defendant undertakes to perform a duty, an act, and does it in such a way as to cause the death of the plaintiff’s intestate. A new trial is denied. Petition dismissed.  