Salmon v. Kansas City

145 S.W. 16, 241 Mo. 14, 1912 Mo. LEXIS 271

Opinions

FERRISS, J.

— Appeal from a judgment of the circuit court of Jackson county sustaining a demurrer to the petition filed by plaintiff charging negligence resulting in personal injuries. The petition was filed on the 15th day of July, 1905, and covers nearly thirty printed pages. The suit was filed against Kansas City and Robert J. Boyd Paving & Construction Company, but subsequently dismissed as to the Construction Company.

It appears from the petition that on the 13th day of May, 1901, Kansas City entered into a contract with the Construction Company for constructing a district sewer in said city by said company. In the course of the ensuing work plaintiff was employed by the Construction Company as a common laborer, and was engaged in drilling holes for blasting rock which was encountered in the work of excavation. The petition charges that the method of preparing the blasts was as follows: The drillers, of whom plaintiff was one, would drill a series of holes about two feet apart, after which such holes would be loaded with giant powder o.r-dynamite by one Kelleher, foreman, and one Moriarity, designated as the powder man, employees of the Construction Company, who would then shoot said holes by means of fuses; that it was usual and customary to count the number of holes in a given series before exploding same, then count the explosions to see whether they corresponded with the number of holes, and afterwards to inspect and examine the holes so exploded for missed shots; that the plaintiff and his gang had nothing to do with the loading or exploding of the holes, nor with the subsequent inspection, but that after the holes had been exploded and inspected plain tiff and Ms gang would be ordered to drill another series of holes; that on the afternoon of Saturday, July 13, 1901, a series of holes which had been drilled by plaintiff were attempted to be exploded by the said foreman and powder man; that on the following Monday plaintiff and his gang were ordered by foreman Kelleher to go back to the place where such series of holes had been exploded to drill a new series; that one hole of the former series remained unexploded, and that while at work drilling the new series a driller who was working near plaintiff caused said unexploded shot to be exploded with such force and violence as to seriously injure the plaintiff.

The plaintiff makes the proper averments to negative any contributory negligence on Ms part.

There seems to have been no controversy as to the liability of the Construction Company for the negligence of its superintendent. The real controversy in the case is whether Kansas City is liable. The petition proceeds upon the theory that because of the power of control reserved in the contract to the city’s engineer, the Construction Company was not an independent contractor, and, hence, the city is liable. In stating below the substance of the petition, we adopt the italics as they appear in the abstract filed by plaintiff. We do not apprehend that these italics appear in the original contract, but use them because they indicate the parts of the contract on which the plaintiff particularly relies.

Plaintiff alleges that the city ordered the construction of the sewer; sets out certain ordinances of the city which provide for the appointment of a city engineer whose duty it should be “to supervise the construction of public and district sewers;” also to prepare plans, specifications and estimates of the cost of all public and district sewers ordered by the council; to report to the board of public works all violations of 'any contract; to sign all contracts on behalf of the city for public improvements, and to superintend their execution. The petition sets out section 883 of the Revised Ordinances of Kansas City for 1898, as follows:

“Permit for Blasting: — No person shall do or cause to be done any blasting within the city limits without first obtaining from the city engineer a permit therefor, which shall be issued only on condition that the city engineer is satisfied that the applicant is in every particular 'a safe, careful and suitable person to use, and an expert in the use of, all explosives used in blasting, but no permit shall, under any circumistamces, be issued to any one until the applicant therefor has entered into a bond to Kansas City in the sum of not less than one hundred dollars or more than ten thousand dollars, as the city engineer may require, with at least two securities, to be approved by the city comptroller, conditioned that such person will carefully and prudently use such explosive, and will pay any and all damages caused any person by the use-thereof. And any person can sue on such bond in his own name for any damage caused him by the use of. such explosive.”

The petition sets out in haec verba the contract between the city and the Construction Company. This contract is extremely lengthy, is in the usual form of municipal contracts for public works, giving specifications as to the character of the work to be done, materials to be used, all under the supervision of the city engineer. The contract provides that the party of the first part (the Construction Company), having made the lowest bid, agrees to complete the work in a substantial and workmanlike manner, “in conformity with the plans of such work on file in the office of the city engineer of Kansas City, in strict obedience to the directions which may from time to time be given by said city engineer or his authorized agents, in accordance with the following specifications.” The specifica tions provide: “The contractor shall not blast any rock or allow the same to be done on this work without taking such precautions by covering or otherwise as shall prevent damage or injury to person or property;” that streets and alleys shall be restored “to the satisfaction of the engineer ” surplus earth to be removed to such distance “as may be designated by the engineer;” the foundations of the sewer to be either of broken stone, plank, concrete or masonry, as shall be “ordered by the city engineer;” the location of manholes and catch basins to be changed, or omitted altogether, “if deemed best by the city engineer;” no broken bricks to be allowed, “except for closures, or as shall be otherwise specially directed.” Then follows a specification as to the character of cement to be used, providing certain tests to be conformed to, “except in such portions of the work as the city engineer may othenvise direct.” The character of the concrete is specified, also the manner of preparing it, “unless othenuise ordered by the city engineer;” house connections to be worked into the brick work “in-such mannér as the engineer may direct;” the masonry work to be suspended during the freezing weather, “but the city engineer shall have the right to direct that the work shall be continued under such conditions as he shall prescribe;” also that during a suspension of the work from any cause, the same shall be suitably covered and the trenches filled “if the engineer so directs;” the syphon trap used to be satisfactory “in the opinion of the city engineer.” Then follows a' specification as to maintenance; the sunken trenches to be immediately filled, and if on'a paved street, the pavement to be repaired by the contractor at his expense, “on receipt of notice from the city engineer so to do;” that if the contractor fails to comply with said “notices from the city engineer for two days¿ then the city may cause the tvork of grading” to be done. Then follow some general specifications: “2. The first party shall commence work at such, points as the engineer may direct, and shall conform to his directions as to the order of time in which the different-parts of the work shall be done, as well as to all his other instructions as to the mode of doing the same.” The next paragraph provides that if the contractor is not present, orders shall be given to the superintendents in charge, and by them received and obeyed, and that “if any person employed on the work shall refuse or neglect to obey the directions of the engineer, or his duly authorized agents, in anything relating to the work, or shall appear to the engineer to be incompetent, disorderly or unfaithful, he shall upon the requisition of the engineer be at once discharged and not agcuin employed on any part of the work.” It is further provided that “the engineer shall be the judge” of any work that may be included in the contract by implication; also that the contractor shall do such extra work as “the engineer may specially direct,” and that if the price for same is not stated in the contract, the price shall be fixed by the engineer;” next, that the contractor shall, “upon being so directed by the engineer,” remove, rebuild or make good, at his own cost, any work which the “latter shall decide to be defective.” The work is to be begun within ten days unless “the engineer shall specially direct otherwise in writing.” Provision No. 8 is, that, if “in the opinion of the engineer” the work is not being prosecuted with sufficient force, the engineer may notify the contractor to employ such additional force “as he deems sufficient,” and upon failure to comply with such notice, “the engineer may put on such additional force at the cost of the first party; or he may, at his option, declare this contract annulled; and the power is reserved to the city engineer by Kansas City to suspend or annul this contract, or to suspend the doing of any work thereunder,” for any failure on the part of the contractor to fulfil same, and the decision of the engineer is to be conclusive. The contractor is required to observe all city ordinances in relation to obstructing the streets, maintaining signals, keeping open passage-way and protecting same, “and generally to obey all laws and ordinances controlling or limiting those engaged on the work.” Then follows a clause by which the contractor agrees to indemnify the city and save it harmless on account of any injuries or damages received or sustained by any party or- parties by the acts of the contractor. Next is a provision that “the city engineer shall, in all cases, determine the amount and quality of the several kinds of work” to be paid for, and that “he shall decide all questions which may arise relative to the execution of the contract,” and that “his estimates and décisions shall be final and conclusive.” It is further provided that the contractor “is subject to the city charter and ordinances in general.” Then follows the agreement as to prices to be paid for the work, among others, “for each cubic yard of solid rock excavated;” then a provision that no payment is to be made until the work has been completed “to the satisfaction of the city engineer,” and that there will be used brick only which has been approved “by-the city engineer.”

This contract was entered into by the Construction Company, as party of the first part, the National Surety Company, party of the second part, and Kansas City, party of the third part; the National Surety Company being surety for the contracting company for the faithful performance of the contract. The said party of the second part agreed “that the said party of the first part will well and faithfully perform each and all of the terms and stipulations in the foregoing contract; ’ ’ and further agreed that the work was to be begun within ten days, “unless the city engineer shall specially direct otherwise.” The contract is signed by the city engineer on behalf of the city, and was duly approved and confirmed by the city council.

Tlie petition, after reciting tlie contract, proceeds to aver that the work of constructing said sewer was commenced and prosecuted by defendants, and that the defendants and each of them had in their employment, and under their superintendence and control, a gang of men to which plaintiff belonged, and that the foreman, Kelleher, was a vice-principal of defendants.

The various specifications of negligence charged against the city are scattered through this lengthy petition in a somewhat confused and inconsequent manner. We have, however, carefully analyzed the same, and find the specifications of negligence may be stated as follows:

1. That the defendants knew, or might have known by the exercise of due care, that there was an unexploded shot in one of the drill holes, but that they negligently and carelessly failed to remove said danger or to warn plaintiff thereof, and negligently ordered plaintiff and his gang to go to said place and drill a new series of holes in close proximity to said unexploded charge.

2. That the injury to plaintiff resulted from the immediate carelessness and negligence of the foreman, Kelleher, and the powder man, Moriarity, who were working under the direction and control of the defendants; that they were not safe, careful or suitable persons for the performance of their duties; were not experienced, and were not competent; that the defendants knew of such incompetency, and were negligent in entrusting them with the work, and that defendants knew that Moriarity was utterly incompetent.

3. That the defendants negligently and carelessly failed and refused to obey the terms of section 883 of the ordinances, set out above, and that tney carelessly and negligently violated said ordinance, in that they failed to compel a compliance with said ordinance, which required them to employ expert licensed blasters; that the blaster employed by them was incoru petent and non-expert, and had no license; that it was within the power, and it was the duty of the city, in the exercise of its reserve power and control over the work, to see that no person should be permitted to do said work of blasting except one qualified under said ordinance, and that the blaster who was employed had not qualified under said- ordinance.

4. That the city reserved and had the power to direct and control the manner of performing'said work of blasting, and to direct and control all the workmen, and was careless and negligent in failing to exercise such power and control, and negligently caused the same to be done without reasonable care and prudence, and that the defendants were negligent in failing to superintend and. control the. manner of performing-said work of blasting in all its details; that the engineer had the power and authority to control and direct all the workmen as to the manner of doing the work, and especially the manner of doing said work of blasting, but negligently failed to exercise such control.

5. That said series of holes to which said unexploded shot belonged was excessively, unusually and unreasonably large in number, and that the foreman and powder man were negligent in attempting to explode same at one time.

6. That the defendants were careless in failing to provide and use on said job reasonably safe explosives or safe and suitable fuses.

7. That defendants were, negligent in failing to provide said foreman and powder man with proper, usual and reasonable tools and instruments with which to search and examine for unexploded powder.

8. That defendants negligently failed to provide said foreman and powder man with proper, usual and reasonable tools and instruments for cleaning out old drill holes and removing powder from unexploded charges or missed shots, and failed to provide any tools or instruments whatever for said purpose.

9. That the Construction Company was at the time of entering into said contract a corporation organized under the laws of Missouri; that it was an insolvent and irresponsible corporation, and was not a fit, proper or suitable corporation for the city to enter into said contract with, and that said, defendant city was negligent and careless in entering into said contract with said Construction Company, in that said company was an insolvent, irresponsible company, and not a fit, proper or suitable corporation for said work, and that the defendant city, at the time of entering into said contract, and throughout the performance of said work, had knowledge of the foregoing facts, or by the exercise of ordinary care would have had knowledge thereof.

10. That said engineer had authority and power to. cause the discharge of all incompetent, disorderly and unfaithful servants engaged on said work, and was negligent in failing to cause the discharge of said foreman and powder man, and, further, in failing to cause the selection and employment of a qualified blaster-one qualified under "the terms of section 883 of said ordinance.

11. That the defendants and each of them failed to use reasonable care to provide plaintiff with a reasonably safe place in which to work, and negligently failed to use reasonable care to keep said place of’ work reasonably safe.

It is further averred in said petition that explosives could be used for blasting in said sewer only by an expert, and that such work required special ability, skill and training; that said unexploded charge was not a risk necessarily incident to said employment; that it was a danger which “could have been obviated by the adoption of reasonable measures of precaution by the defendant, and that the defendants negli gently failed to'take usual and reasonable measures of precaution to guard plaintiff against said danger;” that the risk was not necessarily liable to happen on account of the nature of the business, and was not naturally incident to said employment, where reasonable care was used by the superintending powers to avoid the danger of such unexploded charges; that unexploded shots of that character “are not usual or ordinal risks in sewer construction business in Kansas City or elsewhere, where reasonable care was used by the superintending powers to avoid such danger.” It is further averred that said risk was created and continued by the negligence and carelessness of the defendants, and could have been obviated, removed and avoided by the use of reasonable care on the part of defendants, which care defendants negligently failed-to use; that “it was through the immediate negligence and carelessness of said foreman, Kelleher, and said powder man, Moriarity, that said unexploded shot was left existing unexploded, unsearched for and unremoved from said place.”

It is apparent from reading the contract incorporated in the petition, and above abstracted, that the actual work of constructing- the sewer was performed by the employees of the contracting company which, under the contract, furnished the labor and material; so that wherever in the petition the plaintiff speaks of the defendants, including the city, it is not intended to be asserted that the city was in actual, physical charge of the details of the work, but that by operation of law the employees of the contracting company were the servants of the city; so that, in so far as the pleader charges negligence upon the city, it is a legal conclusion.

The above specifications of negligence charged against the city, with the exception of numbers 3 and 9, may be grouped together for the purposes of this discussion. The liability of the city predicated upon them is made by the plaintiff to rest upon two propositions: (a) That the control and direction of the work reserved to the city by the terms of the contract negative the theory that the Construction Company was an independent contractor so far as concerns the acts of negligence alleged to have caused the injury to plaintiff, and made the city directly .responsible, as master, for such negligence; (b) that owing to the dangerous nature of blasting, the defendant city was under obligation, as a matter of law, independent of the terms of the contract, to see to it that proper precautions were taken to protect plaintiff. This latter proposition is not clearly developed in the petition, but it has been fully argued by both sides, and as the petition could be amended, if necessary, it is in the case and should be disposed of.

I. The petition proceeds upon the theory that under the contract between the city and the Construction Company, the city reserved the direction and control of the immediate acts which, because of their negligent performance, resulted in injury to plaintiff, and the city is therefore responsible for such acts.

As the material parts of the contract are set out in haec verba in the petition, the court will look to the contract itself and construe it according to its terms, regardless of the construction placed upon it by the pleader. Following settled rules of construction, we consider the circumstances of its creation, the object-sought to be accomplished, and the terms of the entire instrument. So considered, does a fair construction of this contract sustain the contention of plaintiff? Counsel for plaintiff asserts in his brief as his basic propositions the following: “The contractor was not independent as to blasting. As to blasting, the contractor was subservient and was completely under the power of control of the defendant. As to blasting, the .relationship of principal and agent subsisted be tween the city and the alleged contracfor. The contractor was insolvent and incompetent, and had not qualified to do blasting, and had no person in its employ competent to do blasting. The defendant reserved and assumed absolute control over the blasting. Responsibility follows from the defendant’s power of control over the blasting. Responsibility follows control.”

Leaving the question of the alleged incompetency of the contractor for later discussion, we will consider the contract. It is in the usual form of contracts for municipal public works, specifying at length and in detail the work to he done and materials to be used, all material and labor to be furnished and paid for by the contractor, who is to be paid for a completed sewer a lump sum to be ascertained by the dimensions thereof. In order to secure a satisfactory job, the owner (Kansas City) reserves to its engineer large powers of supervision and control as to quality of material and the method o.r mode of construction. Obviously, however, these powers are reserved to protect the interests of the city, and not in the interest of the contractor or his servants, nor for their protection. Neither the contractor nor his servants would have ground for complaint should the city fail to exercise such power of supervision. The engineer assumed no duty to plaintiff by the terms of the contract. The plaintiff did not look to the city inspector to protect him from unexploded charges. His reliance was on the foreman employed by the contractor. The contract must be construed as a whole, not upon detached phrases which in themselves in a proper relation might be apt enough to sustain plaintiff’s claim. Taken as a whole, it is plain enough that the powers given to the city engineer are solely for the purpose of securing compliance with the specifications provided in the contract. By no fair construction can the provision authorizing him to direct the mode of doing the work be held to mean that it is his duty to step in between the contractor and his servant, and direct the latter in the details of his operations. The provisions emphasized by the pleader, taken as a whole, and considered in connection with the entire instrument, cannot modify the view above expressed. Fairly construed, such provisions do not prevent the full application of the doctrine of independent contractor to the Construction Company. The right to require the discharge of incompetent workmen is a privilege retained by the city for its protection. This provision is inserted to enable the city to secure good work at the hands of competent workmen; not to protect employees against incompetent foremen. The city has no power to discharge directly an employee of the contractor. A contract of this character was construed in Blumb v. City, 84 Mo. 112. In that case we said of a similar provision: “It did not give the engineer or the city the right to discharge them, and this permission had no reference to the manner of doing the ivork, but only to the workmanship, the character of the work and the quality of the materials used.” The nature of such supervision reserved by the owner is aptly defined by the Supreme Court of Michigan in Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164. In that case a mine owner let the operation of his mine to a contractor, who was to mine and deliver the ore to the owner at a specified price per ton. It would seem to have been conceded that the written contract created the relation of independent contractor. A miner employed by the contractor was injured by a falling roof, improperly supported. The employee sued the owner, and relied upon this clause in the contract: “The making of it (the mine) safe hereby devolving on said first parties (contractors) under the supervision, advice and direction of said superintendent” (for the owner). The court said: “The (mine) owner assumed towards no one the duty to supervise; he does not stipulate to supervise; he only contracts for a privilege. If the mine owner in this case had dismissed the superintendent and sent no one to inspect the working, no miner could complain that a duty owing to him was being' neglected.” Further, it was said that the inspection by the owner was for the purpose of protecting his own property. In the same case it was said that if the mine had been in an unsafe condition at the time it was handed over by the" owner, he might have been liable on the theory that he invited others into unsafe premises without warning of the danger.

In the case at bar the contract does not authorize the city to give direct orders to the workmen. The city does not hire them nor pay them. The liability of the master for the negligence of his servant arises from the fact that he selects the servant with a view to his skill, and is therefore responsible for such selection. There is no. such basis here for imputing responsibility to the city.

In the ease of Carman v. Railroad, 4 Ohio St. 399 (cited by plaintiff), discussing whether the owner or contractor is liable, the court suggests this distinction: “In the one case, the principal (owner) selects the servant or agent with a view to his skill and care, and not only retains the control over all his operations, but also has the power to dismiss him at any time for misconduct. In the other, the contractor assumes this position, leaving the employer no control over the work or the persons by whom it is executed, but simply the right to require the thing produced, or the result attained, to be such as the contract has provided for. ’ ’

A contract similar in general character to the" one before us, but in some respects giving greater power to the engineer, was construed in Norwalk Gas Co. v. Borough of Norwalk, 63 Conn. 495. The petition sought to hold the borough liable for injuries resulting from negligent blasting in the construction of a sewer at the hands of a contractor. It was contended there, as it is here, that in regard to the blasting the contractor was not independent, and .that by the reservation of control in the contract, the borough assumed the responsibility for the acts complained of, namely, the manner of blasting. The contract provided that certain rock should be excavated “with as little blasting as possible, and under the immediate supervision a,)id direction of the engineer for the borough, or his assistant” (italics ours); that “if any person employed by the contractor on the work shall appear to the engineer to be incompetent or disor-' derly, he shall be discharged immediately on the requisition of the engineer.” Commenting on this contract, the court says: “But on the whole we are inclined to think that the weight of authority upon the question justifies us in holding that, the reservations of control, being but partial, and existing in certain respects only, did not prevent the existence of the- relation of contractee and independent contractor; that the general control over the work, as to the manner and method of its execution, the oversight and direction of the performance of the actual manual labor, especially in the particulars in the.execution of which the plaintiff claimed that the injury to its property was caused, notwithstanding the prescribed limitations, remained in the contractor; that the persons doing the work were his servants, not those of the defendant, and that these considerations relating to general control constitute the true test by which to determine whether the relation be that of employer and contractor or that of master and servant.”

There is no claim'in the petition in the case before us that the city, through its inspectors, in fact directed the acts which it is alleged caused the injury to plaintiff.

In Poster v. City of Chicago, 197 Ill. 264, it was insisted that the city was liable for an injury received by a servant of the contractor engaged in excavating for a sewer, and due to improperly protecting tbe walls, on tbe ground that under tbe contract tbe city “remained in a position of control.” Tbe contract is not set out in terms in tbe report of tbe case, but enough appears to show the relation of what was said by the court to the question under discussion. The language of the court is so apt in this regard that we quote it at some length:

“It is true that the contractor agreed to perforin all the work ‘under the immediate direction and superintendence of the commissioner of public works, and to his entire satisfaction, approval and acceptance,’ but the work he agrees so to perform is that prescribed in the contract, and it is evident, we think, that this direction and superintendence relate to results — to the character of the workmanship — and not to methods, unless by the use of improper methods the character •of the workmanship was rendered unsatisfactory. . . . The contract does not include the direction, management and control by the city of every detail of the work. The contractor was not required to take his orders, day by day, from the city. He was to be guided by the contract and the specifications constituting a part thereof. He was not a mere servant and employee. He was an independent contractor, the city retaining such supervisory power as it might, from time to time, find it necessary to exercise to insure compliance with the contract and to obtain the result called for thereby. The contractor employed and paid his own laborers. The deceased was his employee. The difference between an independent contractor and a mere servant is not determined solely by tbe retention of a certain kind or degree of supervision by the employer. It is to be determined by the contract as a whole — -by its spirit and essence — and not by the phraseology of a single sentence or paragraph. Being a contractor, and not a mere servant of the city, the latter cannot be held liable for his negligence in the performance of his work. . . .

“This is not a case where a party, when passing along or using a public street, has been injured because of the negligence of the city in permitting or causing a sewer to be constructed or other work to be carried on in such a street, creating a danger to passersby for which proper safeguards have been negligently omitted. In City of Springfield v. Le Claire, 49 Ill. 476, cited by the appellant’s counsel, the question was whether there was a duty resting upon the city growing out of the franchise conferred upon it to keep its public streets in a safe condition for the passage of travelers and others having occasion to use them, and the question was properly answered in the affirmative. But the deceased in the case before us was not a passenger or a traveler over the street when injured, and there is no analogy between the case so cited, or others of like character referred to by appellant’s attorneys, and the circumstances of the case at bar.”

We rule against the plaintiff on the proposition that the contract reserved to the city the control of the acts complained of.

II. It is urged that even if the city is not liable by contract, it is still liable because of its failure to perform a duty to plaintiff imposed upon it by law; that blasting is so intrinsically dangerous that it be-, comes the duty of the city, when it authoiizes its use in public work, to guard third persons, including the servants of an independent contractor engaged in the ivork, from the incidental danger. The industry of counsel for plaintiff in. error has brought to our attention numerous cases, as well as conclusions of test-writers, recognizing that the law imposes upon municipalities and owners of property certain obligations toward others which cannot be escaped by interposing an independent contractor as the active doer of the tilings complained of. Owners have been held liable to servants of a contractor for hidden intrinsic dangers lurking in premises upon which others are in-, vited, without warning, to work. [Clark v. Railroad, 234 Mo. 396; Young v. Waters-Pierce Oil Co., 185 Mo. 634; Ryan v. Transit Co., 190 Mo. 621; Calvert v. Springfield Light Co., 231 Ill. 290.] Also private owners, and municipalities as well, have been held liable for the consequences of acts which they have authorized and which are intrinsically dangerous to others, no matter how carefully performed, where the danger arises from the act itself and not from the manner in which it is done. We have to do with the proposition last stated, and particularly as applied to the liability of a municipality authorizing blasting in a public street by an independent contractor. The liability of the municipality dnd that of a private owner rest upon the same fundamental proposition, namely, that one must not authorize acts upon his property which in themselves constitute a nuisance o,r a menace to the lives or property of others; and it is no defense to show that the performance of the inhibited act is delegated to an independent contractor. The city is also under obligation to keep its streets safe for travel.

It is said that blasting is intrinsically dangerous, and that therefore the city is liable for injury resulting therefrom. The doctrine as laid down in this regard by the authorities is that the city cannot escape whatever duty arises from the use of this dangerous agency by delegating the act to an independent-contractor. As to the extent of the duty imposed upon the city the authorities are not uniform. It has been held that this duty is to use due care only to prevent injury. [Booth v. Railroad, 140 N. Y..267.] It has also been held that in some instances, where blasting is- done in the street, the city is liable in any event, and cannot defeat a recovery by showing due care. We are not -called upon to lay down an exact rule on this point, because whatever duty the city owes it owes to the public and not to the servants of the contractor. This is not a case of imperfect appliances furnished by the city, nor one of inviting persons into premises unsafe at the time of the invitation. It is a case where liability is claimed because of the intrinsic danger attending the use of explosives. No text-writer and no case cited extends the protection of this doctrine to an employee of the independent contractor. We have examined the numerous cases cited by plaintiff to support the proposition that blasting is so intrinsically dangerous that when the city authorizes its use by an independent contractor, it becomes liable for resulting injury. We may concede that these cases properly declare the law without approaching the question involved in the case before us. Ail of the cases relied upon deal with injuries inflicted upon persons disconnected from the work, as for instance, passersby on the street or adjacent property-owners, and where the injury results from the violent expulsion of rock or earth incident to a blast. No man can tell where a rock hurled into the air without direction will fall, and therefqre danger to persons and property in the vicinity is to be anticipated, and so far as possible to be guarded against.

The doctrine of the. cases referred to has no reference to a servant of the contractor engaged in blasting ; certainly not when, as here, the injury to the servant results from the sheer negligence of the contractor or his foreman in failing to protect the laborer in work which in itself is not inherently dangerous. The drilling of a hole for a charge of dynamite is certainly not an inherently dangerous task. The negligence of the foreman, which it is charged was the immediate cause of the injury, was not the natural and obvious result of blasting; so that even if the doctrine of cases involving the rights of outsiders be extended to the servant of the contractor, the servant in this case would not come within the rule. It cannot be said that because the city is liable to adjacent persons and property, when it authorizes the use of an inherently dangerous agency (which is the doctrine of the cases relied on), therefore any employee engaged in the quarry may hold the city for any negligence of the contractor or his foreman. Counsel confuses the case of the servant of the contractor, who is injured by reason of the negligent manner in which the blasting is done, with the case of a third person on the street who is injured' by the blast itself, without reference to the manner in which the blast is set free. In the latter case the injury results from violent expulsion upon the street and adjacent property of. rock and earth authorized by the city. This expulsion of rock and earth occurs in the proper execution of the work. The plaintiff was not injured in the proper execution of the work, but solely by reason of the negligent manner in which it was performed, i. e., the negligent failure to detect the unexploded charge. It does not appear that the plaintiff was in any danger from the proper explosion of a blast. Indeed, such danger is expressly negatived in the petition, which avers that the dang-er was not a necessary oné, nor incident to the work in which plaintiff was engaged.

In Missouri Valley B. Co. v. Ballard, 53 Tex. Civ. App. 110 (a case in point upon the facts), the servant of the independent contractor sued the owner. The court, after stating the general • doctrine of liability of the owner to the public, says: “The exception within which the verdict of the jury' has brought this case finds its’ best illustration in those cases where public streets have been made dangerous by excavations or otherwise, and where in the nature of things the safety of the traveling public has been endangered, unless needed precautions have been taken to prevent it. In such a case, as has been often said, the injuries are the direct result of the very thing which the employer authorized to be done, and he cannot, therefore, escape liability by farming out the work to an independent contractor. It is in the nature of a nondelegable duty, owing to-those whose life or limb is thus jeopardized. But where, as here, the injury is the result of an act or fault purely collateral to the work to be done, and is the result entirely of the wrongful act of the independent contractor or his workmen, the employer should not be held liable.”

If the owner directs the contractor to perform an act which is dangerous to others, even if carefully performed, he is liable to others for the consequences, In such case the injury results, not from the mode in which the act is done, but from the doing of the act by the most careful mode. The danger is incident to the act itself; hence, the owner is responsible for the consequences of the act. On-this principle rest the numerous decisions in cases where blasting throws rocks which cause damage. As was said by the Supreme Court of Arkansas in Railway v. Yonley, 53 Ark. l. c. 598: “If one» employs another to perform a work which from its nature is necessarily dangerous to the property of a third person, the employer cannot escape liability for the injury thereby done. In such cases the injury flows from the doing of the act as its natural consequence, and not from the manner in which the act is done.” But aside from the differential facts above referred to, the doctrine of liability of the city to outsiders, supported by plaintiff’s cases, is not extended by either reason or authority to include the servant of the contractor. If the foreman himself had been injured by his own negligence averred in the petition, it would hardly be claimed that the city would be liable; yet the doctrine for which plaintiff contends would protect the foreman, orpeven the contractor himself, from the consequences of his own negligence. It would be a strange anomaly in jurisprudence were we to hold that an employer is liable to tbe servant of an independent contractor because of tbe negligence of tbe contractor or bis foreman in the performance of some casual act in tbe course of tbe work. The owner owes no legal duty to such servant to protect him from tbe negligence of bis foreman. There is no parallel between tbe relation of tbe city to plaintiff and its relation to tbe pub-, lie and adjoining owners. In tbe case of Loth v. Columbia Theatre Co., 197 Mo. 354, we refused to apply tbe doctrine of independent contractor where a passerby was injured by tbe lowering of a large sign, but we said: “Tbe injury in tbe case at bar resulted directly from tbe acts called for and made necessary by tbe contract, that is, the changing and replacing of tbe sign, and not from tbe acts which were merely collateral to tbe contract, and if by tbe negligence and carelessness of tbe men handling tbe sign it fell upon and injured plaintiff, tbe company is liable as if it bad directly performed such acts.” But supposing the sign, through careless handling, had injured one of tbe workmen engaged in tbe work, would it be claimed that tbe owner was liable ?

Tbe true rule of liability is thus stated by Dillon in bis work on Municipal Corporations, sec. 1723, vol. 4. “Where the work contracted- for necessarily constitutes an obstruction or defect in tbe street, of such a nature as to render it unsafe or dangerous for tbe purposes of public travel,' unless properly guarded or protected, tbe employer (equally with tbe contractor), where tbe injury results directly from the acts 'which the contractor engaged to perform, is liable therefor to tbe injured party. But tbe employer is. not liable where tbe obstruction or defect in tbe street causing tbe injury is wholly collateral to tbe contract work, and entirely tbe result of tbe negligence or wrongful acts of tbe contractor, subcontractor, or his servants. In such a case the immediate author of tbe injury is alone liable.”

The authorities cited by plaintiff are in line with this statement of the law. In Schip v. Pabst Brewing Co., 64 Minn. 22, a servant of the contractor sued the owner for injuries. He offered to prove that the contractor was incompetent and known to be so by the owner, also that the building being removed was in a dangerous condition. These offers were rejected by the trial court. On appeal, the Supreme Court says: “For the purposes of the case we will assume that plaintiff could have proved these offers, and was entitled to do so, if it would result in proving a cause of action against defendant. Counsel for appellant have cited no case which has held the owner liable to the servant of the contractor under such circumstances. There are many cases which hold that the owner of premises cannot, by employing a contractor, relieve himself from the continuing duty which he owes to the public and to the adjoining owners not to maintain a nuisance on his premises, or license any one else to do so. But we can find no case which holds that the owner owes any such continuing duty to the servant of the independent contractor engaged in the very work of abating’1 the nuisance.” See also latter paragraph of citation from Foster v. City of Chicago, supra, where it was held that the servant of the contractor could not recover from the owner.

In Peoria B. & C. Trac. Co. v. O’Connor, 149 Ill. App. 598, a laborer employed by the contractor for a street railway company sued the railway company for injuries received on account of a defective derrick rope used in hoisting an iron pole in the street. The court, after stating the rule that protects persons using the streets, said: “If appellee had been injured while using such public street or ground as a passer-by thereon, appellant could not have relieved itself of liability for its negligence in creating such condition merely because the construction company had failed to do its duty. Appellee when injured was not in the exercise of Ms .right as a citizen to use the public street. There was no causal connection between the negligence and the accident, and the particular place where the same occurred. We are therefore of opinion that the rule in question is inapplicable in the present case.” To the same effect, see Louisville & N. R. R. Co. v. Smith’s Adm’r, 134 Ky. l. c. 60, where, under similar circumstances, the court said: “Of course, a different question would be presented if by reason of the prosecution of this work a train had been derailed, and a passenger injured; for in such case the duty of the company to furnish the passenger with safe passage is such -that it could not excuse itself for any negligent act on the part of an independent contractor that in anywise impaired the safety of its track, but no such question as that is presented here. No such relation existed between deceased and the railroad company. The railroad company was under no duty to deceased, since the relation of master and servant did not exist between them. The duty which it owed to the traveling public to maintain its track in a safe condition for the passage of its trains did not in the least obligate it to look out for the safety of deceased, who was an employee of.an independent contractor engaged in a separate and distinct undertaking.” Like rulings are found in Reilly v. Railroad, 122 Ia. 525; Engler v. Seattle, 40 Wash. 72; Hanna v. Railroad, 88 Tenn. 310. The cases of Covinglon Bridge Co. v. Steinbrock, 61 Oh. St. 215, and Wetherbee v. Partridge, 175 Mass. 185, on which plaintiff strongly relies, are not in point, as they involve injuries to outsiders or adjacent property. These and other cases hold to the doctrine of Dillon v. Hunt, 105 Mo. 161. Scott v. Springfield, 81 Mo. App. 312, held the city liable for injuries to a servant of the contractor, but on the ground that the city retained the actual control, and that, hence, the contractor was not independent. And so it is with other cases hold ing the employer liable. These cases are not in point, in view of the construction which we have given above to the contract under consideration.

From the foregoing,reasoning and authorities, it is clear that, even conceding that blasting is intrinsically dangerous, there would he no liability in this case, as a matter of law, on the part of the city to plaintiff for injuries caused by the negligence of the contractor’s foreman.

III. It is claimed that the petition avers that the contractor was incompetent, and known to the city to he so. The charge in the petition falls short of this. Here it'is: “That said Robert J. Boyd Paving and. Construction Company was at the time of en tering into said contract and still is a corporation, organized and existing under the laws of Missouri. That it was an insolvent and irresponsible corporation, and was not a fit, proper or suitable corporation for the city to enter into said contract with, and that defendant city was negligent and careless in entering into said contract with said Robert J. Boyd Paving and Construction Company, in that said company was an insolvent, irresponsible company, and not a fit, proper or suitable corporation for said work, and that the defendant city at the time of entering into said contract, and throughout the performance of said work, had knowledge of the foregoing facts, or by the exercise of ordinary care would have had knowledge thereof.” * ‘

The unfitness alleged must be referred to the alleged insolvency. Furthermore, for reasons given above, a charge of incompetency would not help plaintiff. The city owes no duty to the servant of the contractor to provide him a competent and skilful employer. In Schip v. Pabst Brewing Co., supra, the court (L. c. 25) said: “Neither has our attention been called to any case where the owner was held liable on the sole ground of failing to exercise with due care a temporary duty of employing- a competent contractor (after which his responsibility would cease), but in every case there was a continuing duty not to maintain a nuisance on his premises himself, or license others to do so. It is often laid down as one of the conditions required to. relieve the owner from liability that he shall employ a competent contractor. But this language (where it is not mere dictum) is always used in cases where the owner owes such continuing duty, and the work to be performed by the contractor will necessarily result in a nuisance to the public or the adjoining owner, unless great or extraordinary care is taken to prevent it from doing so.”

The following cases are cited by plaintiff on this point: Brannock v. Elmore, 114 Mo. 55; Dillon v. Hunt, 82 Mo. 155; Mullich v. Brocker, 119 Mo. App. 332. But these cases refer to the obligation which the owner owes to outsiders. No ease has been cited, or found by us after extensive research, which extends this obligation to a servant of the independent contractor.

IY. The pleader attempts to predicate liability against, the city because of the alleged violation of section 883 of the ordinance, requiring a license to qualify one to do blasting. On this point it is sufficient to say that the law is settled in this State that a city is not liable for failure to enforce its ordinances. [Ryan v. Kansas City, 232 Mo. 471; Loth v. Theatre Co., 197 Mo. 328.]

Tested by the foregoing reasons and authorities, the petition fails to state a case against the defendant city.

The demurrer having properly been sustained, the judgment of the circuit court is affirmed.

Lamm, Woodson and Graves, JJ., concur; Valliant, G. J., Kennish and Broiun, JJ., dissent in opinion filed.