Giaconi v. City of Astoria

Mr. Justice Moore

delivered the opinion of the court.

The alleged failure to adopt a plan for the proposed improvement and defendant’s averred supervision of the work will be considered. To render these questions intelligible requires a more detailed statement of facts than has been hereinbefore given. The resolution adopted by the council declaring an intention to improve Irving avenue required the city surveyor to make and file with the auditor plans and specifications for and estimates of the work, and provided that any matter of construction or drainage found necessary to make the improvement safe or substantial should be done by the contractor, whether specified or not, without extra charge. Pursuant to the resolution, the surveyor ran cross-section lines, examined the land, and filed with the auditor specifications for the improvement, which provided that cuts and fills should be made to make the highway conform to the established grade, and that on certain lines, conduits of designated material and dimensions should be used. The established grade of Irving avenue at Eighteenth and Nineteenth streets is 185 and 191 feet, respectively, above low water on the Columbia Eiver, which stream is nearly parallel with and about 500 feet from the avenue. Though the specifications filed provided for the disposal of surface water the draining of block 24 was not required, nor was any bulkhead or other means suggested to prevent a possible slide. The ordinance limiting the time and prescribing the manner of the grading demanded that the performance of the work be let to the lowest bidder, and that “the contract shall provide that said improvements shall be constructed and completed to the satisfaction of the committee on streets and public ways, and the superintendent of streets and the city surveyor.” The contract stipulated that the improvement should be made strictly as provided for by the plans *18 and specifications and the ordinance, and that Goodin shoúld have full charge of the work. He installed at the designated places conduits of the character demanded and began to make the fill, but soon discovered that the surface of the ravine was gradually settling, carrying down and breaking the drain pipes which he had laid, and upon demand of the committee on streets he put in a box drain made of wood, but it soon sank. When about 3,000 cubic yards of earth had been moved into the fill, a heavy rain occurred, and a sink hole appeared into which were daily placed about 200 cubic yards of soil without making much change, so that on the following morning the cavity would seem as vacant as it had on the preceding morning. When working near this hole, an unknown spring was revealed, which constantly discharged sufficient water to fill a two-inch pipe. Below the fill, as the embankment rose, the surface of the ravine began to crack, bulge and gradually to move towards the river. In the rainy season water flowed from the gulch which at one time was so swampy that a horse had been mired, but in the summer when the specifications were prepared and the improvement undertaken no water appeared on the surface. Near the fill, however, an oval pool, comprising about 100 square feet, contained a little water. Displacement of soil had occurred in other parts of Astoria, but none had ever been known to happen where the slide here spoken of took place.

A. S. Tee, who had been city surveyor of Astoria nearly 10 years, and whose experience as a civil engineer covered a period of 31 years, testified that he was not requested by any one to ascertain whether or not the surface of the ravine was sufficient to sustain an embankment of 32 feet, which was. its height at the deepest place in the gulch; that until the ground began to settle he had never entertained a doubt on the subject of the stability *19 of the soil; and that he had also supposed the pipes provided for and which was placed in trenches under the fill were adequate to carry off all the water.

W. A. Goodin testified that in clearing the right of way on Irving avenue, before the resolution was adopted declaring an intention to make the improvement, he discovered cracks in the earth at the place where the slide subsequently occurred. This witness did not inform the city surveyor or any one of this fact, so far as disclosed by the transcript.

G. B. Hegardt and T. H. Curtis, civil engineers of many years’ experience, who examined the premises after the injury, severally testified that, before any improvement was undertaken at that place, the subsoil should have been examined by boring to determine whether or not a foundation could have been secured sufficient to sustain the weight of the fill, and that provision should have been made for a system of drainage which was as essential as a safe basis for the fill.

1. Predicated on such testimony, a finding was made that defendant did not exercise care or skill in providing plans or specifications for the improvement or for drainage. The conclusion thus reached seems to have been questioned by the trial court, for with the findings was filed an opinion wherein it was said:

“But, even if there should be a doubt as to the question of negligence in preparing or failing to prepare a proper plan of improvement, the subsequent conduct of the city in regard -to the fill in the gulch after the hillside began to move out leaves my mind entirely free from doubt as to the liability of the city.”

A municipal corporation in devising plans for improving public highways within its borders acts judicially, and when proceeding in good faith is not liable for errors of judgment; but in constructing the work it acts ministerially, and is bound to see that the plan is executed in a *20 reasonably safe and skillful manner. Goddard v. Inhabitants of Harpswell, 84 Me. 499 (24 Atl. 958: 30 Am. St. Rep. 373, 379); Chicago v. Norton Milling Co., 196 Ill. 580 (63 N. E. 1043); Lansing v. Toolan, 37 Mich. 152; Defer v. Detroit, 67 Mich. 346 (34 N. W. 680); McDonald v. Duluth, 93 Minn. 206 (100 N. W. 1102); Watters v. Omaha, 76 Neb. 855 (107 N. W. 1007: 110 N. W. 981).

2. The exemption of a municipal corporation from liability for injuries resulting from errors or defects in the plan of public work is criticised by a text-writer who in referring to decisions upholding the principle says:

“We think, however that the rule is too broadly stated in these cases, and that there are instances in which a city may be liable for injuries caused by defects in the plan of a street or sewer. It seems to us that a distinction should be drawn between those cases in which the defect in the plan arises from a mere error of judgment and those in which the defect arises from negligence in devising or adopting the plan.” Elliott, Roads & Streets (2 ed.) § 473.

In the succeeding section the learned author elucidates this animadversion by the following statement:

“If the city has obtained the professional advice of one skilled in such matters, and has used due care in selecting its adviser, it will generally be free from liability, if, in consequence of following such advice, the structure, or other improvement, as the case may be, turns out to be defective.”

We concur in what Judge Elliott has said respecting a sewer, for the rule seems to be that for a defect in a plan therefor, in consequence of which an injury results, the city is liable for ensuing damages. Plaintiff’s counsel cites many cases in support of this principle, but no reference thereto will be made, since it is believed they are not in point because the improvement of an unopened street is an exercise of governmental power by a municipal corporation as the agent of the state and made for *21 the benefit of the general public, while the building of a sewer is more in the nature of an assertion of a proprietary right by a city for the use of its own citizens in which the inhabitants of a state at large can have but little interest. Denver v. Rhodes, 9 Colo. 554 (13 Pac. 729); Donahoe v. Kansas City, 136 Mo. 657 (38 S. W. 571).

3. In order to devise a proper plan defendant had the service of its surveyor, who is a competent engineer, and in running the cross-section lines to determine the amount of the cut and fill, he examined the ground where the improvement was to have been made, and prepared specifications based on such investigation. We think his judgment respecting the plan was all that could reasonably have been required from an inspection of the then condition of the soil, when it is remembered that no slide had ever been known in that vicinity, and that he was never informed, so far as we can determine, of the existance of the fissures which Goodin saw. It was not difficult for the expert engineers who examined the premises after the injury, accurately to state what precautions should have been taken. It will be kept in mind that the conditions presented to their attention were very different from what were seen when the city surveyor made his observations, and, in view thereof and of the further fact that the city employed a competent engineer, we think there was not such negligence in adopting a plan as to render the defendant liable.

4. The remaining question is whether or not the improvement was made under defendant’s direction as alleged in the complaint. The execution of the plan is a ministerial service, and for any negligent performance thereof liability attaches. The contract did not stipulate that any officer of the city should direct the manner by which the fill was required to be made. The specifica-

*22 tions contained a detailed statement of what the embankment should be when finished, and constituted a guide for the performance of the work. It was stipulated that the improvement should be constructed and completed to the satisfaction of certain city officers. This clause probably authorized them to inspect the work until it was finished to see that it conformed to the requirements of the contract. The “satisfaction” referred to evidently meant a legal approval of the improvement, and, if the work had been performed in substantial compliance with the stipulations, the law would hold the officers satisfied. The resolution declaring an intention to grade the avenue provided that “any matter of construction and drainage found necessary to make the improvement safe or substantial shall be done by the contractor, whether specified or not, without extra charge.” The committee on streets, who with others were to be satisfied with a performance of the work, demanded of Goodin the placing 'of a box drain under the fill, and he complied therewith. The right to exercise any discretion respecting a performance of the work seems to have been limited to necessary drainage, and it is quite certain that the means adopted for that purpose at the suggestion of the committee on streets did not cause the injury, but that the slide was probably occasioned by attempting to make the fill. The defendant did not reserve any supervisory control over the improvement nor any discretionary power over the contract itself, which restrictions are essential to make a city liable for the acts of a contractor in the performance of work. Chicago v. Joney, 60 Ill. 383; Chicago v. Dermondy, 61 Ill. 431. It has been held, however, that the reservation by a municipality in letting a sewer contract of the right to change, inspect and supervise to the extent necessary to produce the result intended by the contract will not render it liable *23 for negligence of the independent contractor, provided the plan is reasonably safe, the work is lawful, is not a nuisance when completed, and there is no interference therewith by municipal officers. Uppington v. New York, 165 N. Y. 222; (59 N. E. 91: 53 L. R. A. 550). By the express provision of the contract Goodin had full charge of the improvement in the making of which he was not the agent of the city, and the doctrine of respondeat superior can have no application to the case at bar.

5. A careful examination of the entire testimony which has been sent up fails to disclose that any direction was given by defendant’s officers or agents respecting a performance of the work, except that Goodin was required to place a box flume in the fill, a duty imposed upon him by the resolution whenever necessity demanded a drain. Before the slide occurred, the city surveyor and other officers knew that injury might result from a continuance of the work, but no effort was made to suspend operations until it was too late to be of any service. However, as no power to superintend the making of the improvement was reserved, the defendant was not liable on the ground of estoppel.

As we view the testimony, there is no controversy respecting the facts, and, believing the conclusions of law as deduced by the court below are erroneous, the judgment is reversed, and the cause remanded for such further proceedings as may be necessary not inconsistent with this opinion. Reversed.