Plaintiff, while walking on the public boulevard in front of defendant's church, was injured when she stepped into a hole in the ground during a heavy rainstorm. The jury found for plaintiff, and defendant appeals from an order denying its alternative motion for judgment or a new trial. The amount of the verdict is not questioned.
On April 23, 1948, approximately 53 days after the work had been completed and accepted by defendant's trustees, plaintiff was walking along the sidewalk abutting defendant's property during a heavy rainstorm. It had started to rain about 5 p.m. that day. Plaintiff was not wearing rubbers. As she approached the part of the sidewalk under which the contractor had dug to connect the church with the sewer main, she saw a depression in the sidewalk filled with muddy water. It appeared to her to be "perhaps about five or six inches" "at about the deepest spot in the depression." It looked deeper than two or three inches to her. She testified that that was why she "walked around it" and stepped out onto the boulevard. It appeared to her that there was not as much water on the boulevard as there was in the depression in the sidewalk and that it seemed to her "it was the safest way of going." She took about three steps on the boulevard to test it — "it was solid ground and it seemed safe enough," she testified. The water there was not over her shoes. She took another step and fell into a hole and sustained injuries. She was wet up to above her waistline. Because the water on the boulevard, as on the sidewalk, was muddy, plaintiff could not see that there was a hole in the boulevard. She tried to crawl out of the hole but slipped back in. She tried again and succeeded. It was raining hard at the time. The hole was described by plaintiff's father as about 18 inches in diameter and about 24 inches deep. It was located in the part of the boulevard which in February the contractor had previously dug up between the curb and sidewalk and had refilled with large chunks of frozen dirt. Plaintiff had never walked over this sidewalk before the accident.
Plaintiff testified that she left her place of employment at 5:30 p.m. to go home. It was raining then. She boarded a South St. Paul streetcar at Seventh and Wabasha streets. The streetcar conductor would not let any of the passengers off at State and
A witness for plaintiff, Elvina Kurren, who lived two doors from defendant's church, testified that she observed a depression, "maybe two or three inches," in the sidewalk before the accident. She testified that she had "never paid any particular attention" to the condition of the excavation in the boulevard except to notice the dirt. The first time she saw it after plaintiff's accident it was covered with water. Subsequently that evening she examined the hole in the boulevard and found it was about two and a half feet deep. There was some water in the bottom of the hole the second time she saw it.
After both parties had rested, defendant moved for a directed verdict in its favor on the grounds (1) that there was no evidence of defendant's negligence, and (2) that plaintiff was guilty of contributory negligence as a matter of law. The trial court denied defendant's motion, and the issues of negligence and contributory negligence were submitted to the jury. The denial of this motion is the only error assigned on appeal.
1. As a general rule, an employer is not liable for the acts of an independent contractor or his servants. However, as stated in Pacific F. Ins. Co. v. Kenny Boiler & Mfg. Co. 201 Minn. 500, 503, 277 N.W. 226, 228, there are so many exceptions to the rule that an employer is not liable for the negligence of an independent contractor whom he employs "that the rule is now primarily important as a preamble to the catalog of its exceptions." See, Restatement, Torts, §§ 410 to 429. One of the exceptions is that of a person under a duty to the public to see that the work he is about to have done is carefully performed so as to avoid injury to others. In such case, the party causing the work to be done cannot, by letting it to a contractor, avoid liability in case the work is negligently done to the injury of another.
"An abutting owner who causes an excavation or obstruction to be made in or near a public highway in front of his premises in such a manner that injury to a traveler will result unless precautions are taken cannot let the work to an independent contractor and escape liability if such contractor fails to take the necessary precautions."
And (Id. § 50):
"* * * Where street dangers
Likewise (Id. § 38):
"It is well settled that one who orders work to be executed, from which, in the natural course of things, injurious consequences must be expected to arise unless means are adopted by which such consequences may be prevented, is bound to see that necessary steps are taken to prevent the mischief, and such person cannot relieve himself of his responsibility by employing someone else, whether the contractor employed to do the work from which the danger
If the employer, at the time of acceptance and resuming possession of the work from an independent contractor, knew, or ought to have known, or from a reasonable inspection could have known that there was any defect in the work, he is responsible for any injury caused to a third person by the defective construction. See, Prosser, Torts, § 64, p. 485, note 88; 1 Shearman and Redfield, Negligence (Rev. ed.) § 21; 27 Am. Jr., Independent Contractors, §§ 37 and 55.
Here, defendant's trustees admittedly knew that in February the hole in the boulevard had been filled in with chunks of frozen dirt. An inspection of the fill would have revealed that it had not been properly packed and that it would settle and subside unless given further attention. Moreover, it was self-evident that the frozen dirt thrown back into the hole, as apparently this was, would not produce a satisfactory and lasting fill. Defendant, in the exercise of reasonable care, should have anticipated that the fill would wash out, as it did, during the heavy spring rains experienced in this area each year. See, Willie v. Minnesota Power & Light Co. 190 Minn. 95, 250 N.W. 809; Brown v. German Rock Asphalt Co. 236 N.Y. 271, 140 N.E. 695; Johnson v. Friel, 50 N.Y. 679; Restatement, Torts, § 290. Furthermore, it was reasonably foreseeable that a pedestrian would be injured unless precautions were taken to correct the defective condition before spring. See, 4 Dunnell, Supp. § 7000c. The jury's finding of negligence was amply justified in this case. Molis v. City of Duluth, 226 Minn. 79, 32 N.W.2d 147; Williams v. John A. Stees Co. Inc. 172 Minn. 35, 214 N.W. 671; Johnson v. Elmborg, 165 Minn. 67, 205 N.W. 628; Moore v. Townsend, 76 Minn. 64, 78 N.W. 880, supra; McCarrier v. Hollister, 15 S.D. 366, 89 N.W. 862; Gainfort v. 229 Raritan Avenue Corp. 127 N.J.L. 409, 22 A.2d 893; cf. Shepstedt v. Hayes, 221 Minn. 74, 21 N.W.2d 199; Kooreny v. Dampier-Baird Mortuary, Inc. 207 Minn. 367, 291
2. Defendant contends that plaintiff was guilty of contributory negligence as a matter of law. The facts have been set out in detail. It is sufficient to point out that plaintiff walked on the boulevard to avoid a puddle of water five or six inches deep resulting from the depression in the sidewalk caused by defendant's negligence. See, Williams v. John A. Stees Co. Inc. supra. She took four steps and fell into a hole concealed by muddy water. It was raining hard at the time. The issue of contributory negligence was clearly a fact question for the jury. See, Bowen v. City of St. Paul, 152 Minn. 123, 188 N.W. 554; Thoorsell v. City of Virginia, 138 Minn. 55, 163 N.W. 976; 4 Dunnell, Dig. & Supp. § 6838.