p. 201plaintiffs, for the value of a horse belonging to him, which was accidentally killed by falling into a trench, which was dug, and negligently left exposed, across a street in the city of Wilmington, by the defendant as the agent or servant of the plaintiffs. The plaintiffs were the owners of a leather manufactory in Wilmington, and employed the defendant to dig the trench and lay a trunk across the street, the object of which was to open a communication below the street-for the drain and flow of water from their factory. The trench was dug forty feet long and ten feet deep diagonally across the street, and a portion of it was left in this condition so negligently exposed, without guards or fenders along the sides of it, by the defendant, that Bonsai, who was driving his horse rapidly down the street about four o’clock, on a very dark morning, drove into it before he perceived it; by which accident his horse was instantly killed, and his vehicle and harness were much damaged. He afterwards brought an action for the injuries and loss sustained by him, and obtained judgment on a rule of reference out of court, and the report of referees against the plaintiffs for $287.50, and costs, which they paid; and this action was now brought by them to recover the amount from the defendant. There was some proof that it was understood between the plaintiffs and the defendant, when they contracted with him to do the Work, that he was to procure a permit from the City Council to dig the trench and lay the trunk across the street, and an application was made by him for that purpose; but it was not obtained.
Gordon, for the defendant,
moved to nonsuit the plaintiffs. The suit was brought by the plaintiffs against the defendant as their agent and servant, for negligence in the performance of the contract between them, by reason of which they had been damnified; and to sustain that action, it was incumbent upon them to jnove that there was a contract between them, and that it was a legal and valid contract, and not against public policy or morality. But
p. 202the contract to dig up the street in Wilmington without the license of the City Council, and which was done without the authority and permission of that body,, was illegal and a trespass on the street, and all concerned in committing it were indictable for it. It was a nuisance in a public highway, and the contract to dig the trench was illegal and void. Story on Agency, 283; Paley on Principal and Agent, 66.Patterson, for the plaintiffs,
admitted the general principle as stated, but denied its application in the present case.We refuse to nonsuit the plaintiffs, because there was some proof offered by them, that, according to the agreement between them, the defendant was to obtain whatever license or permit was necessary from the author!-, ties of the city, to open the trench and lay the trunk for the plaintiffs. If this was the agreement—and that was a question not for the Court, hut for the jury to determine— it was not a contract to do an illegal act, so far as the plaintiffs were concerned; it was itself a breach of his contract with them to undertake the work without the license, and would not exempt him in this action from his liability to them for the further breach of his contract, which implied an engagement on his part to exercise due care and diligence in the mode of performing it.
charged the jury, without argument of counsel, on points suggested by them, and on which they asked the instructions of the Court, that if the contract between the parties was, that the defendant was to do the work and open the trench across the street and lay the trunk, without license first obtained from the proper authorities of the city for that purpose, it was illegal, and the plaintiffs could not maintain an action upon it for the damage sustained by them, by reason of any negligence or misconduct on the part of the defendant in doing the work. But if the agreement between them was that the defendant was to
p. 203procure the license before he proceeded to open the trench, hut did not obtain it, the plaintiffs could recover, unless it further appeared in evidence that the plaintiffs were apprised of his failure to obtain it, and afterwards agreed to his proceeding without it. That even when such a work was begun, and even whilst it waá in progress by competent authority, or permission, it was the duty of those having charge of it to exercise strict diligence, and to provide all needful and proper means to prevent such accidents as the one referred to in this case, and to protect the public against loss and injury in the use and enjoyment of the common highway; and this obligation was only the stronger certainly, when it was done without proper authority. As to the measure of damages, in regard to which the Court had been asked to instruct the jury, they could not exceed the amount of the judgment recovered against the plaintiffs by Bonsai, with interest upon it from the date of the recovery; but whilst that judgment was evidence to show the quantum of damage, or the extent to which the plaintiffs had been damnified, and the amount of the defendant’s liability to them in the present action, it was no evidence of the faót itself upon which that judgment was founded; that is to say, it is no evidence to show that the damage and injury which they have sustained was occasioned by the negligence or misconduct of the defendant, for that was a fact to be proved otherwise, and as to which the jury must be satisfied by other evidence in the ease, or they could not find a verdict for the plaintiffs.
Verdict for the plaintiffs.