Cotter v. Lindgren

Citations

• 106 Cal. 602
• 39 P. 950
• 1895 Cal. LEXIS 648

Syllabus

<p>Negligence—Leaving Excavation Unguarded—Uncertainty in Pleading.—A complaint stating that a pit was dug in the sidewalk of a highway by the defendant at a certain date, and that the same was left without protection, barriers, or lights, to warn persons of danger, and alleging that the injury to the plaintiff occurred on a subsequent date, but not stating that at the time of the alleged accident the pit was not properly protected and guarded with barriers and lights sufficient to apprise of danger persons traveling on the highway or sidewalk, is subject to a demurrer for uncertainty in not specifically alleging the unguarded condition of the excavation at the time of the accident.</p> <p>Id.—Defective Findings.—Findings of fact, from which it cannot be inferred that the excavation was not sufficiently guarded and lighted at the time of the accident, are defective, and such defect is ground of reversal, where the evidence upon that subject was substantially conflicting.</p> <p>Id.—Master and Servant—Excavation Made for Contractor by Servants of Subcontractor.—Subcontractor not Liable.—Where a building contractor is required by his contract to furnish all materials and do all the work including all necessary excavations for the foundation, with areas under the sidewalk to give light and ventilation to the cellar, and a subcontractor has only contracted to do the brickwork, including the walls inclosing the areas under the sidewalk, and the men employed by the subcontractor excavated the areas for the contractor, and under his direction, the relation of master and servant does not exist between the subcontractor and the men who excavated the areas in the sidewalk in regard to that work, and it is not material that the servants who did the work were in his general employ for other purposes.</p> <p>Id.—Duty to Guard Areas—Completion of Contract.—Where areas are excavated under a contract it is not the duty of the contractor to guard them after the job is completed, unl