
    CIRCLEVILLE v. NEUDING.
    Where a city contracted for the construction of a cistern, eighteen feet wide and twenty feet deep, in a street, and before the cistern was completed a horse fell into it and was killed, for want of sufficient protection around and over the excavation, to guard animals in the proper use of the street from danger,
    
      Held: That the city was liable for the loss of the horse, although it did not reserve or exercise any control or direction over the manner of doing the work, except to see that it was done according to specifications which were a part of the contract.
    Error to the District Court of Pickaway County.
    
      The city of Circleville on the 20th day of December, 1881, made a contract with one Peter Barndt to construct a public cistern for the city in one of its streets, according to plans and specifications adopted by the city council. Barndt agreed to furnish all materials and do all the labor in the construction of the cistern for a given price agreed upon by him and the city council. The cistern was eighteen feet in diameter and twenty feet deep. After the excavation for the cistern had been made and the wall built up about ten feet, and while the work was temporarily suspended, a mare, the property of the defendant in error, who lived within a few rods of the cistern, being at large accidentally on the street, fell into the cistern and was so injured that she died soon afterwards. The cistern was left by the workmen without a fence around it, but it was covered partly with three inch plank and partly with one inch pine boards. The covering of the excavation was not much raised above the level of the street, and at the'time of the accident there was about eight inches of snow upon this covering. *A trial in the common pleas resulted in a verdict and judgment for the plaintiff. This judgment was affirmed in the district court, and the defendant below files his petition in error to reverse this judgment.
    
      Adolph Goldfredrick and I. N. Abernethy, for plaintiff in error.
    1. The city is not liable, 1st, because the construction of the cistern was let by an independent contract, in which the city retained no control over the mode and manner of its performance. City of Cincinnati v. Stone, 5 Ohio St., 38; Carman v. S. & I. R'y Co., 4 Id., 399, 414; Clark v. Fry, 8 Id., 358 ; Veigel v. Lukenheime, 10 C. L. Bull, 293 ; Dayton v. Pease, 4 Ohio St., 80 ; Samyn v. McClosky, 2 Id., 536 ; Hughes v. R'y. Co., 39 Id., 461.
    That this principle is supported by the decided preponderance of modern authorities elsewhere, we refer to the following cases : Painter v. Mayor of Pittsburgh, 46 Penn. St., 213; Barry v. St. Louis, 17 Mo., 121; Allen v. Wil
      
      lard, 57 Penn. St., 374, 382; James v. San Francisco, 6 Cal., 528 ; O'Hale v. Sacramento, 48 Id., 212 ; Scammon v. Chicago, 25 Ill., 424; Hale v. Johnson, 80 Id., 185 ; Ryan v. Curran, 64 Ind., 346 ; Erie v. Caulkins, 85 Penn. St., 247 ; McCafferty v. R. R. Co., 61 N. Y., 178; Blake v. Ferris, 1 Seld., 48; 5 N. Y.; Pack v. Mayor, etc., 4 Id., 222; Kelly v. Mayor, etc., 1 Kernan, 432; 11 N. Y.; Van Wert v. Brooklyn, 28 How. Pr., 451; Hilliard v. Richardson, 3 Gray, 349; Wray v. Evans, 5 Am. L. Rec., 319; Conners v. Hennesy, 112 Mass., 96 ; DeForest v. Wright, 2 Mich., 368; Westchester v. Apple, 11 Casey, 284.
    The principle we contend for is supported and sustained by all the principal text writers. Shearman & Redfield on Negligence, 91 and 92, and note on 92, also p. 171; Cooley on Torts, 548,549; Wood on Masters and Servants, 601, 603, 605; Addison on Torts, 197, 395 ; 2 Hilliard on Torts, 451, 460.
    2nd. The city was not guilty of negligence.
    The right of the city to temporarily or partially obstruct streets, in the construction of cisterns, sewers and other improvements, can not be questioned; and the use of the public highway is subject to such obstruction. Such temporary obstruction is not a nuisance. Clark v. Fry, 8 Ohio St., 358.
    A municipal corporation is not an insurer against accidents upon the streets. It is bound to keep its streets in a reasonably safe condition, but not absolutely so. 2 Dillon on Municipal Corporations, 1039; Rockford v. Hildebrant, 61 Ill., 155; Smith v. St. Joseph, 45 Mo., 449; Seward v. Milford, 21 Wis., 485; Williams v. Clinton, 28 Conn., 264.
    Nor is a municipal corporation bound to keep all of its streets in good repair under all circumstances, but only such streets and parts of streets as are necessary for the convenience of the travelling public. Craig v. Sedalia, 63 Mo., 417.
    The duty of the city is only to see that its sidewalks are reasonably safe for persons exercising ordinary care and caution. Chicago v. McGiven, 78 Ill., 347.
    
      Wherever it is held that municipal corporations must keep streets in repair, such duty is modified to extend only to the roadway proper and not to the whole width as originally laid. out.
    The duty to keep in repair the streets of municipal corporations extends to the road actually used for travel, provided it was wide enough to be safe. 2 Dillon, 1024. Brown v. Glasgow, 57 Mo., 156; Titus v. Northbridge, 97 Mass., 258; Howard v. North Bridgewater, 16 Pick., 189 ; Moss v. Burlington, 15 N. W. Rep., 267; s. c. 46 Am. Rep., 82; 4 Allen, 557; 4 Gray, 395; 105 Mass., 344; 98 Mass., 578.
    • Samuel W. Oourtright and Festus Walters, for defendant i,n error.
    The obligation of a city to keep its streets in a safe condition for the passage of persons and property, is a primary one, and the city cannot divest itself of it. The improvement was in its nature dangerous, and the city was bound to protect the excavation. Mayor, etc. of Baltimore v. O'Donnell, 53 Md., 110; City of Logansport v. Dick, 70 Ind., 65; City of Chicago v. Robbins, 2 Black, 418; Robbins v. Chicago City, 4 Wallace, 657; City of Buffalo v. Holloway, 3 Selden, 497 ; Homan v. Stanley, 66 Pa. St., 464; Ironton v. Kelly, 38 Ohio St., 52; Tiffin v. McCormack, 34 Id., 643; Grant v. Brooklyn, 41 Barb., 381; Storrs v. Utica, 17 N. Y., 104; Prentiss v. Boston, 112 Mass., 43; Myers v. Springfield, Id., 489; Currier v. Lowell, 16 Pick., 170 ; Willard v. Newbury, 22 Vt., 458 ; Carman v. Ry. Co., 4 Ohio St., 399; Dillon on Mun. Corp., § 793; Nashville v. Brown, 9 Heisk, 1; s. c. 24 Am. Rep., 289; Wilson v. Wheeling, 19 W. Va., 323; s. c. 42 Am. Rep., 781; 74 Mo., 480; 73 Id., 71; 78 Ind., 308; 57 Id., 192; 45 Id., 429; 43 Vt., 45; 71 Mo., 52; 19 Fla., 106 ; 53 Md., 110; 49 Id., 257.
   McCauley, J.

It is contended- on behalf of the city that it is not liable for the loss of the horse-, because the cistern was in process of construction by an independent contractor when the injury occurred. The relation between the city and Barndt was clearly that of employer and independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation, the contractor alone is liable. But this liability is limited to those injuries which are collateral to the work to be performed, and which arise from the negligence or wrongful act of the contractor or his agents or servants. Where, however, the work to be performed is necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition the rule has no application. This distinction has been taken in this state in a number of eases. Carman v. Railroad Co., 4 Ohio St., 399; Tiffin v. McCormack, 34 Id., 638; Hughes v. Railway Co., 39 Id., 461, and elsewhere, in McCafferty v. Railroad Co., 61 N. Y., 178; Prentiss v. Boston, 112 Mass., 43; Baltimore v. O’Donnell, 53 Md., 110; Logansport v. Dick, 70 Ind., 65; Crawfordsville v. Smith, 79 Id., 308; Robbins v. Chicago, 4 Wall., 657.

In this case, the cistern contracted for, was to be built ih a street, and to be eighteen feet wide and twenty feet deep. Such an excavation in a street unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous. The city was under the statutory obligation at the time of the accident to keep its streets open, in repair, and free from nuisance, and it could not cast this duty upon a contractor, so as to relieve itself from liability to one who should receive an injury. It is primarily liable for an injury resulting from such dangerous place in a street. If it has required the contractor to assume the risk of such damage, it may have a remedy against him. But the public in the use of the streets may rely upon the legal obligation of the city to keep them free from dangerous places, or if such places become necessary to be made in the course of an improvement or work necessary or proper for the city to do, that it shall so guard them that no injury shall result in the ordinary use of the street.

Judgment affirmed.  