Opinion
May 5, 1959 —
June 2, 1959.
APPEALS from two judgments of the circuit court for Fond du Lac county: RUSSELL E. HANSON, Circuit Judge. One judgment affirmed. The other is reversed and remanded for a new trial.
For the appellant there was a brief by Mann Hayes, attorneys, and William F. Hayes of counsel, all of Ripon, and oral argument by William F. Hayes and by William A. Ritchay of Milwaukee.
For the respondents there was a brief by McLeod, Donohue Colwin of Fond du Lac, and oral argument by Joseph D. Donohue.
Plaintiff sued the city engineer and a sewer contractor for damages which plaintiff sustained when his automobile ran into a pile of dirt placed in a city street incident to the construction of a city sewer. The complaint against Carter, the city engineer, was dismissed by summary judgment. The complaint against the contractor, Eckstein, was dismissed upon a directed verdict. Plaintiff appeals from these judgments.
Plaintiff was injured on a dark, rainy night while he was driving east on Fond du Lac street in the city of Ripon. The city was laying a sanitary sewer along the south side of this street, and in digging the ditch for the sewer, dirt from the ditch was piled upon the south half of the street. At the time of the accident a barricade, a burning flare pot, and a sign placed in the highway west of the ditch warned motorists of the construction and directed them to use the northerly half of the highway. Several lighted flares were placed on the dirt pile and there was a street light over the west end of the dirt pile.
Plaintiff saw the warning sign and proceeded eastward as directed, using the north side of the highway. He observed an automobile coming toward him and turned to the south side for the other car to use the north traffic lane. While doing so, plaintiff ran over the west end of the pile of dirt without seeing it and plaintiff's automobile tipped over, causing him personal injuries and property damage. Plaintiff alleges that the obstruction was insufficiently guarded by lights, barriers, and other warning devices and these defects were due to the negligence of the two defendants.
Defendant Carter's motion for summary judgment was supported by the contract between the city and Eckstein, the material parts of which are:
"Whereas, the city of Ripon has elected to install sanitary sewer along East Fond du Lac street from the present terminus of the existing main to a point approximately at the eastern limits of the city of Ripon and to do the work itself for the reason that upon advertising for bids, no bids were received, and,
"Whereas, second party has agreed to perform certain of the labor and to use certain equipment and furnish certain materials in connection with the installation of sanitary sewers along said East Fond du Lac street in the city of Ripon.
"Now, therefore, in consideration of the covenants hereinafter set forth and the agreements of the parties, it is agreed:
"1. Second party shall furnish the equipment and labor for the digging of trenches and tunnels necessary to install approximately 2,600 feet of sanitary sewer on East Fond du Lac street from the present terminus of said sanitary sewer system to a point at approximately the eastern city limits of the city of Ripon and to furnish all the necessary sanitary sewer pipe at his cost for the main and the laterals including all fittings, and to construct and furnish all materials including manhole covers for the required number of manholes and to do all of the laying of said sanitary sewer and to do the work necessary to perform such services at the following rates: . . .
"2. First party shall remove all excess dirt, furnish all backfill, backfill all trenches except tunnels or trenches made for extension of laterals under roadway, furnish all blacktop filling where necessary and gravel all driveways, replace all driveways and maintain same, replace, grade and maintain shoulder of roadway where necessary, and to furnish city equipment and materials where necessary to expedite the work."
Carter's own affidavit supporting his motion sets forth that he is the city engineer of Ripon, that he drew the plans for the sewer, that he had general supervisory duties only in the construction of the sewer, requiring the exercise of discretion and of judicial and legislative powers, and the actual work on the project was done by the employees of Eckstein; and that the city of Ripon furnished the warning signs and lights and city employees put them in place during the progress of the work, and particularly did so on the night of the accident. In further support of Carter's motion there is an affidavit of Potter, that he is a city street-department employee, that Potter's duties included placing the warning signs of one-way traffic and the placing of lights around the sewer excavation and he did, in fact, perform these duties on the day of the accident.
The city engineer is a municipal officer whose duties involve discretion and judgment. The affidavits supporting Carter's motion for summary judgment show without dispute that Carter did not have the ministerial duty of placing warning signs or lights at the excavation and dirt pile. Such duties were those of someone else, — Potter. The rule governing liability of public officers is given in Meyer v. Carman (1955), 271 Wis. 329, 73 N.W.2d 514:
"A public officer who knowingly or negligently fails to do a ministerial act which the law requires him to do may be compelled to respond in damages to an injured party; but official action is ministerial only when it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion for its performance with such certainty that nothing remains for judgment or discretion." (Syllabus.)
Appellant submits that we have stated a different principle in Robinson v. Rohr (1889), 73 Wis. 436, 40 N.W. 668. We do not think the Robinson Case says so.
In that case persons who composed the highway committee were held personally liable to a user of the highway for negligence in the course of highway repairs causing injury to him. But those defendants did not let out a contract in the name of the city or in any public body. They simply undertook to do the work themselves and employed agents and servants to execute the work. This court said, page 443:
"By personally and practically undertaking to do the work through servants of their own employment, they are brought into contact and relation with the traveling public and the plaintiff, and assume corresponding duties and obligations."
Again, in the Robinson Case, supra, the court said, page 441:
"This is not a public, but a private, duty, which they must discharge properly or be liable to those injured by their negligence. As public officers, acting for the public alone, they are exempt from personal liability. The doctrine of respondeat superior does not apply to such."
The present case is very different from Robinson v. Rohr, supra. Defendant Carter did not engage to do the work himself. It was the city which determined to do the work and the city has not been made a party to the action. The city engaged Eckstein to do the work described in the contract. As representative of the city, Carter had general supervision over the performance of the job but he was not engaged in laying the sewer nor doing it for his own benefit. The doctrine of respondeat superior does not apply to Carter because Potter, not Carter, was the ministerial agent of the city. If Potter failed to place a necessary light the liability attaching to a superior would proceed from him to the city and not to Carter. Potter was not Carter's agent or servant.
The present case is like that of Beck v. Fond du Lac Highway Committee (1939), 231 Wis. 593, 286 N.W. 64. There the plaintiff was injured by running into a county snowplow during a snowstorm when the snowplow was insufficiently lighted. The plaintiff sued each of the county highway committeemen in his own name and in his individual capacity. Plaintiff thought that they were liable to him because one or more of the committeemen sent out the snowplow without proper lights. We held that there was no liability to plaintiff on the part of the committee corporately or individually, saying (p. 597):
"Only the county or the persons actually operating the vehicle could sustain any liability in such a case as is here involved."
We held that neither the committee nor its individual members sustain a tort liability merely by reason of the fact that a truck belonging to the county has been negligently operated by the employees in charge of it. The county committee and its members are merely representatives of the county.
We consider that the rule must be the same when there is a single municipal officer instead of a committee.
The summary judgment correctly dismissed the complaint against Carter.
We turn now to Eckstein and the judgment based on the directed verdict in his favor.
The agreement between the city and Eckstein recites that the city has elected to install the sewer and hired Eckstein to perform certain specified services in the construction. The contract did not place the duty on Eckstein of guarding the excavation either by night or day. The evidence shows that the city retained that obligation for itself, and by day placed a city employee, Potter, to act as flagman, and at night, also by Potter, to set out flares at the approach to the dirt pile as well as upon it. Eckstein testified that he checked the lights each day at the close of work but that does not affect the retention by the city of these responsibilities nor the city's recognition and performance of them. Nevertheless, we have to consider sec. 62.15(11), Stats., which is part of ch. 62, Cities, General Charter Law:
"STREET OBSTRUCTION. All contractors doing any work which shall in any manner obstruct the street or sidewalks shall put up and maintain barriers and lights to prevent accidents, and be liable for all damages caused by failure so to do. All contracts shall contain a provision covering this liability, and also a provision making the contractor liable for all damages caused by the negligent digging up of streets, alleys, or public grounds, or which may result from his carelessness in the prosecution of such work."
The contractor cannot avoid the duty imposed on him in this statute by delegating the performance of the duty to another. If the duty in fact is performed by another such performance inures to the contractor's benefit; but if the duty is not performed the contractor is charged with the failure and its consequences. Potter testified he lighted and placed all lights on the dirt pile. It is a fact that immediately after the accident the light was not burning at the west end of the pile, where plaintiff first came to it. The light showed signs of having been struck by an automobile. The trier of the fact must determine whether Potter complied with the statutory duty required of Eckstein and whether plaintiff negligently failed to see the obstruction. Credibility of witnesses and the inferences to be drawn from their testimony are ordinarily jury questions.
In the exercise of due care the motorist must see what is there to be seen in his path and his speed must be so reduced that his car can be stopped within the distance the driver can see ahead.
Eckstein submits that under all the circumstances surrounding this accident the causal negligence of the motorist, Clausen, exceeds that of Eckstein. We do not think that the existence of the causal negligence of each party and the comparison of causal negligence, if any, are questions which, on this record, should be taken from the jury. Ordinarily these are jury questions, Smith v. Clayton Construction Co. (1926), 189 Wis. 91, 206 N.W. 67, and we see no reason to depart from precedent here.
The trial court in the present case did not rest its directed verdict on the ground that the plaintiff's causal negligence exceeds that of Eckstein, but rather on the ground that, by contract, the duty to safeguard the obstruction was that of the city and not of the contractor. This ignores sec. 62.15(11), Stats., which requires the contractor to give the statutory protection to third persons. Liability of the city is not before us. The city is not a party to the action.
Judgment dismissing Clausen's complaint against Eckstein must be reversed.
By the Court. — Judgment for Eckstein reversed. Cause remanded with directions to grant a new trial between Clausen, plaintiff, and Eckstein, defendant. Judgment in favor of Carter, affirmed. In taxing costs appellant and respondent Carter shall be limited to one half the costs of printing.
MARTIN, C. J., took no part.