Burger v. Philadelphia

Citations

• 196 Pa. 41
• 46 A. 262
• 1900 Pa. LEXIS 467

Syllabus

<p>Negligence — Cities—■Depression in street — Contractor.</p> <p>In an action by a woman against a city to recover damages for personal injuries caused by the sinking of the unpaved surface of a refilled trench on which plaintiff stepped at the crossing of a street, the negligence alleged was that in refilling the trench the earth had not been properly packed. The work of digging and refilling the trench had been done by a contractor and had been left by him three weeks before the accident, and the street had been thrown open during this time to public use. The contract under which the work was done was for the reconstruction of sewer inlets in all parts of the city. The contractor was not to do a particular piece of work for a fixed price, but such work as was directed at a price agreed upon for each particular kind of work required. When ordered the work was to be done in the presence of the inspector and the department reserved the right of absolute control and direction. Generally under' the contract it was the duty of the contractor' to repave the part of the street which he had torn up, but in this matter, as in all others, he Was subject absolutely to the .direction of' the chief engineer. There was evidence that the city did not direct .the paving over of the trench for the reason that it intended itself to .repave the whole surface of the street. Held, (1) that if there was negligence in the manner of filling the trench, the city through its inspectors had notice of it; (2) that there was ample evidence to require the submission to the jury of the question whether having notice of the defects in the work, the city had accepted it from the contractor, and opened the street to public use; (3) that the rule in Painter v. Pittsburg, 46 Pa. 213, relieving a city from liability for the negligence of an independent contractor did not apply under the circumstances of this case; (4) that a verdict and judgment for plaintiff should be sustained.</p>