
    City of Buffalo v. Holloway.
    
      Responsibility of contractor. — Duty of municipal corporation. — Pleading.
    A municipal corporation, against whom a recovery has been had, for an injury sustained in consequence of a contractor for the construction of a public sewer having left it unprotected, has no remedy over against the contractor, unless his contract provided that he should use precautionary measures against accidents. In the absence of such provision, it is the duty of the corporation to guard the excavation ; the contractor owes no such duty to his employer.
    An averment in the complaint, that by reason of a contract, it became the duty of the defendant to do certain acts, is insufficient; the facts must he stated from which the duly arose.
    City of Buffalo v. Holloway, 14 Barb. 101, affirmed.
    Appeal from the general term of the Supreme Court, in the eighth district, where a judgment for the plaintiff, upon demurrer to the complaint, had been reversed, and a judgment rendered for the defendant. (Reported below, 14 Barb. 101.)
    The complaint set forth that, in 1849, the common council of the city of Buffalo, in pursuance of authority conferred by law, resolved that a sewer be constructed in Elk street, in said city, from the Clark and Skinner canal to the Canal slip near Louisiana street; and the street commissioner of said city was, by such resolution, directed to contract with the defendant for the construction of said sewer, in accordance with the proposals for said work, before reported to the common council. That the street commissioner did, in pursuance of such resolution, enter into a contract, in behalf and as agent of the city, with the defendant, to construct the said sewer. That Elk street was a public street • or highway in the said city, and had been and was used as such, for persons at all times to pass and repass along and upon, freely, at pleasure, on foot, and with carriages, horses and cattle. That the defendant, after he commenced the construction of said sewer, and for the purpose of constructing the same, excavated the earth, in and near the middle of Elk street, near the east end of the bridge over Canal slip, in such manner as to make a deep pit or hole, near the east end of said bridge, about twelve feet in length, along the middle of said Elk street, and about four feet wide, and about fifteen feet deep.
    That it then became, and was, and continued to be, the duty of the defendant, while the said pit or hole should remain open, to use due care, and to erect, main- * aqa i ta^n an<^ beeP lights, guards and barriers *about 4y4 -* and in the vicinity of said pit or hole, to prevent and protect persons, lawfully travelling and passing in, along and upon said street, from and against unavoidably falling into said pit or hole. That the defendant neglected his duty in this behalf, and did not use due care, or erect, or maintain, or keep lights, guards or barriers about or in the vicinity of said pit or hole, to prevent or protect persons, lawfully travelling or passing in, along and upon said street from and against unavoidably falling into said pit or hole.
    That while the said pit or hole was open, the defendant wrongfully, carelessly, negligently and improperly left the same unguarded; and while the same was so left, one Augustus F. Tripp, while lawfully passing and going along and upon Elk street, unavoidably fell into said pit or hole by means of which, he was injured and sustained damages. That he, afterwards, brought an action against the City of Buffalo, for such injuries, and recovered a judgment therefor, for $1000 and costs, which had since been paid by the plaintiff; and that, by reason thereof, a right of action accrued to the plaintiff, to recover the same of the defendant, for which judgment was demanded.
    The defendant demurred to the complaint, and assigned the following causes of demurrer :
    1. The facts in the complaint do not show any relation existing between the plaintiff and the defendant, which makes the defendant liable to the plaintiff for the claim therein demanded.
    2. The statement of facts in the complaint does not establish any liability in favor of the plaintiff against the defendant.
    3. The statement of facts in the complaint does not make out a cause of action against the defendant.
    The court, at special term, overruled the demurrer, and gave judgment for the plaintiff, with leave to answer. This, however, was reversed, at general term, and judgment entered in favor of the defendant; whereupon, the plaintiff took this appeal.
    
      Pool, for the appellant.
    
      Janson, for the respondent.
   * Jewett, J.-

I consider it to be a well-settled I ^ 49b rule of law, at this day, notwithstanding there are some cases to the contrary, that the liability to make compensation for an injury arising from the negligent act of another, attaches only on the person doing the act, or on the person employing him. The liability of any one other than the party actually guilty of any wrongful act, proceeds on the maxim that he who does an act through the medium of another is in law considered as doing it himself — quifacit per alium facit per se.

The party employing hats the selection of the agent employed: and it is reasonable, that he who has made choice of an unskilful or careless person to execute his orders, should be responsible for any injury resulting from his want of skill or want of care. But neither the principle of the rule, nor the rule itself, can apply to a case where the party sought to be charged does not stand in the character of employer to the party by whose negligent act the injury has been occasioned. (Quarman v. Burnett, 6 Mees. & Wels. 499; Rapson v. Cubitt, 9 Id. 711; Milligan v. Wedge, 12 Ad. & Ellis 737; Laugher v. Pointer, 5 Barn. & Cress. 547, Opinion of Abbott, C. J., and Littledale, J.; Hobbitt v. London & Northwestern Railway Co., 4 Wels., Hurlst. & Gordon 254; Blake v. Ferris, 5 N. Y. 48.)

It is not necessary, in this case, to decide whether, in any case, the owner of lands or houses may not be * aqv i resPonsiMe I°r nuisances, Occasioned by the J manner in which his property is used by others, not standing in the relation of servant to him. It may be, that in some cases, he is so responsible. But then his liability must be founded on the principle, that he has not taken due care to prevent the doing of acts which it was his duty to prevent, whether done by his servants or others. If, for instance, a person occupying a house or a piece of land, should permit another to carry on there a noxious trade, so as to be a nuisance to his neighbors, it may be, that he would be responsible, though the acts complained of were neither his acts nor the acts of his servants. He would have violated the rule of law, which requires every one to enjoy his own property in such a manner as not to injure that of another person.

It may well be, that the case alleged and proved by Mr. Tripp, authorized a recovery against the City of Buffalo, upon the ground, that the act which occasioned his injury was the negligent act of the agent or servant of that city, in executing the contract made with it, for the construction of the sewer; or upon the ground, that the city of Buffalo improperly omitted to erect, maintain and keep up the necessary lights, guards and barriers about and in the vicinity of the pit or hole excavated in Elk street, during the progress of the work.

The City of Buffalo was bound to exercise its right in constructing the sewer, in a careful and prudent manner, so as to avoid injury resulting to others from it, and if it were prudent and necessary to erect, maintain and keep lights, guards and barriers about and in the vicinity of the place excavated, during the progress of the work, in order to protect and prevent persons lawfully travelling and passing along the street, from unavoidably falling into the pit or hole and thereby sustaining injury, it was its duty to do so, and, consequently, it is liable for injuries occasioned by the want of such proper precautionary measures. As between the City of Buffalo and the defendant, the obligation of the latter extended no further than to perform his part of the contract made for the construction of the sewer, according to its terms, with' reasonable skill, and, consequently, he is only liable to the city to compensate it for such injuries as it sustained *for want of the exercise of such skill in the performance *- of his contract in that manner.

The complaint states that, for the purpose of constructing the sewer, the defendant excavated the earth in or near the middle of Elk street, near the east end of the bridge on the Canal slip, in such manner as to make a deep pit or hole near the east end of the bridge, about twelve feet in length along the middle of the street, of the width of about four feet, and of the depth of about fifteen feet; and that it then became and was the duty of the defendant, while the pit or hole remained open, in the use of due care, to have erected and maintained lights, guards and barriers about and in the vicinity of the pit or hole, to prevent and protect persons lawfully travelling and passing in, along and upon Elk street, from and against unavoidably falling therein; that while the pit or hole was open, the defendant wrongfully, carelessly, negligently and improperly left it unguarded, and while so left, &c., Mr. Tripp, while lawfully passing along and upon Elk street, unavoidably fell into it, by means whereof, he was greatly hurt, &c., and afterwards sued the City of Buffalo for such injuries, and recovered against it a certain sum, &e., therefor, which the said city had paid, &c.

It will be observed, that it is not stated or alleged in the complaint, that it was not necessary for the defendant, in order to construct the sewer, in pursuance of the terms of his contract, to excavate the pit or hole in every respect as it was done, or that there was any lack of skill manifested in executing the contract in that respect. The complaint, instead of stating facts and circumstances to show that it was the duty of the defendant to erect and keep up lights, guards and barriers, while the pit remained open, assumes that such was his duty, and proceeds at once to allege a breach of this duty. The difficulty is, the want of any statement of facts, from which such duty arises; for an allegation of the duty is of no avail, unless, from the rest of the complaint, the facts necessary to raise the duty can be collected. If the excavation to construct the sewer in the street in question was such as to make it necessary and proper to erect lights, guards and barriers in the vicinity, to render the passing of the street safe, *while open, it, unquestionably, was the duty of -■ the City of Buffalo to have caused such precautionary measures to be taken. The city might have contracted with the defendant to take such measures; in that event, the duty, as between him and the city, would have devolved upon him, and he would have been liable for all the consequences resulting to it, for any neglect on his part in observing his stipulations in that respect; or the city may have judged the measures unnecessary, and, therefore, omitted to provide for them in its contract with the defendant, or if otherwise, the city might have chosen to contract for the doing of that service with some other person. In either case, the defendant would owe no such duty to the city, whatever liability he might have incurred to others, who suffered' by the digging of the pit and leaving it open, without such measures having been taken to guard against the danger which there was in . passing in the street. (Seymour v. Maddox, 16 Q. B. 326; 1 Chitty R. 370, ed. 1812, by Day.)

The complaint should contain a plain and concise statement of the facts constituting a cause of action. (Code, § 142.) In my opinion, the complaint in this case comes short of that. The defendant was at liberty, by § 144 of the code, to demur to it, when it appeared upon its face, that it did not state facts sufficient to constitute a cause of action. The judgment, therefore, should be affirmed.

Judgment affirmed. 
      
       This case was decided on the ground that it was the duty of the municipal corporation, and not of the contractor, as between themselves, to have guarded the excavation, so as to prevent persons falling into it. Rochester v. Montgomery, 72 N. Y. 69. If the contractor had been the principal wrongdoer, though the corporation might be also liable, there is no doubt of its right to recover over against the former; though both tort-feasors, they are not in pari delicto. Robbins v. Chicago, 4 Wall. 657 ; Lowell v. Short, 4 Cush. 275 ; Troy v. Troy and Lansingburgh Railroad Co., 49 N. Y. 657 ; s. c. 3 Lans. 270 ; Rochester v. Montgomery, 72 N. Y. 65. And see Creed v. Hartman, 29 Ibid 591
     