Charlock v. Freel

There is no basis for a claim under the evidence that the defendant wras a mere servant and agent of the city, and not liable for omissions of duty in respect to the obstruction in question. The defendant had contracted to make a sewer in one of the streets of the city of Brooklyn by a contract with the city. This contract provided that the contractor should give security to save the city harmless from “all suits and actions =ii * * inconsequence of any negligence in guarding the same.” The contract provided for extra work, and under this provision the grade at the intersection of Polaski street and Tompkins avenue was raised. The defendant, in doing this extra work, raised first the curb-stone to the required height. The flag-stones next to the curb were laid on the sidewalk. Water collected, during a shower, next to the curb, and an attempt was made to open a way for the water to run into the street. This was done by defendant’s employes. They took away the dirt to accomplish this purpose. The water sunk under the curb, and left an excavation some 15 or 18 inches in depth. This excavation was permitted to remain from Wednesday until Friday night, when the plaintiff fell into it, and broke her arm. The work was to be done under the direction of the city engineer. The extra work falls under the contract, and was to be carefully done, and the fact that the work was to be done according to the plan of the engi*227tneer did not relieve the contractor from, due care in the performance of the work, Kelly v. Mayor, 11 N. Y. 432. The ease of City of Buffalo v. Holloway, 7 N. Y. 493, is not adverse to this. There a contractor who had been negligent in his duty, and in consequence the city of Brooklyn had been subjected to damages, was held not to be liable to an action to reimburse the city; that his agreement was only to construct the work with reasonable skill; and that the city was bound to protect the travelers from danger during the construction. That the contractor did not do his work with due care has been found by the jury, and the evidence abundantly justified the finding, and out of this the defendant’s liability grows. Mairs v. Association, 89 N. Y. 498. The judgment should therefore be affirmed, with costs. All concur.