Anderson v. Dickie, 1 Rob. 238

Anderson v. Dickie

1 Rob. 238 | The Superior Court of New York City | 1863

By the court, Robertson, Justice.

The plaintiff was injured by falling through a circular aperture in the pavement of the street in front of Nos. 68 and 70 Lispenard street, in the city of New York, from which a passage descended into a vault adjoining such premises and used therewith. This opening passage and vault were there when the premises were let by the defendant to a tenant. Such aperture was covered usually by a loose, movable circular grating, sunk into a circular flange or socket cut into the flagging of the side-walk, on which it rested. It appeared in evidence that a chain, fastened to such grating and to a bar on the inside of the vault, would have added to the certainty that such grating would not be moved. It also appeared that a grating with prongs, with a double chain fastened to each side of the opening, and a flange projecting beyond the edge of the opening and resting on the pavement, would have been the most secure. The evidence as to the existence of any fastenings to such grating when the premises were let by the defendant, as to the possibility of tilting up the grating, if it was in its socket, and as to the condition of the fastening and grating at the time of the accident, was conflicting. There was some evidence to show that the grating had been displaced and left unreplaced by the tenant.

On the trial the defendant’s counsel requested the court *116to charge the jury, among other things : 1st. That a landlord had no right to enter premises let by him, without the consent of the tenant. 2d. That he is not bound to make repairs when he lets such premises by a lease binding the tenant to leave the premises in as good a condition as when he entered. 3d. That he is only liable for his own negligence, and not for that of his tenants. 4th. That he is not liable unless proved to have had something to do with the displacement of the grating, where the accident could not have happened if it had been properly placed in its bed. 5th. That he is not liable if the accident happened by reason of the tenant’s not replacing the grating in its bed after using the opening.

The learned justice who presided at the trial charged the jury: 1. That the law imposed upon the owner of property in a city, who used any part of a street for his private purpose, the duty of employing all necessary and proper means for the prevention of damages and injury that might arise from the use of such public street by him, and he is responsible for all injury resulting from the street being made thereby less safe for its proper uses when there is no negligence on the part of the party injured. 2. If the grating was insecure at the time of the happening of the accident in question, and that was occasioned by the negligence of the defendant, he is liable in this action; for, being the owner of property, he was bound to see that the grating was kept securely. 3. If the jury were satisfied, without the chain and bar the grating was entirely secure and free from liability to cause accidents to persons passing over it, the defendant was not guilty of negligence. 4. If the defendant did not resort to all necessary and proper means to render the grating secure, and its insecurity had, existed and continued for a considerable time previous to this action, he is liable. 5. The law is answered by a landlord’s using reasonable diligence, at the time of letting the property, to see that it is in good condition. 6. The *117defendant would not be liable if the grating had been secured by him previously, and the security had been removed by the tenant or any one else. The court refused to instruct the jury upon these points requested otherwise than it did in such charge, and the defendant’s counsel excepted to such refusal.

It was not probably intended to be maintained on behalf of the defendant that the liability of the tenant would absolve him from all responsibility for the injury to the plaintiff. The creator of a nuisance, or one who more remotely, either by negligence or design, furnishes the means and facility for the commission of any injury to another, which could not have been done without them, is equally responsible with the immediate wrong-doer. ( Vandenburgh agt. Truax, 4 Denio R. 464 ; Thomas agt. Winchester, 6 N. Y. R. 397; McCahill agt. Kipp, 2 E. D. Smith’s R. 413.) So, too, if the defendant had never let the premises adjoining the vault, and the grating had been left in a condition to be easily moved by a stranger, and it had been so moved as to cause the injury in question, it would hardly be contended that the defendant was not liable for the injury to which he had contributed. The only question which remains, therefore, is, whether the defendant relieved himself from responsibility in such case by demising the vault and its appurtenances, with the insecure grating, to a third person ?

It was held in the cases of Congreve agt. Smith (18 N. Y. R. 79), and The Same agt. Morgan (id. 84), that persons constructing an area in the highway are bound at their peril to keep it so covered that the way would be as safe as before the area was built, wholly irrespective of the covering being rendered unsafe by the wrongful act of a third party ; which was followed by this court in the case of Davenport agt. Ruckman (Gen. Term Superior Court, 1863, Nov. 29). It may well be doubted whether, even if the defendant in this case had let the premises with the grat*118ing over the vault-hole secured by only movable fastenings, he would not be responsible for injury caused by those fastenings being removed, where he parted with their possession.and control. He could hardly be held to have discharged his duty to the public by leaving such traps as vault-holes, guarded against doing injury only by fastenings easily undone and intended to be undone constantly by the tenant, for which facility he may be supposed to have been receiving part of his rent. But if there were no fastenings, but merely a loose cover to the opening, he would still be more obnoxious to responsibility for its removal. The charge was more favorable to the defendant than he could ask, since it exempted him from liability if he used reasonable diligence to see that the premises were in good condition when he let them, and if the grating had then been secure. Although the security had been removed by another, it only made him liable in case the grating was insecure at the time of the accident by reason of the negligence of the defendant, and if he did not resort to all proper and necessary means to make it secure, and its insecurity had existed for a considerable time.

The request to charge as to the right of a landlord to enter premises let by him, if relevant, was too broad; he can do so to prevent waste, and certainly to save himself from liability for leaving an exposed opening in the highway. It was not absolutely necessary that he should go on the premises to add a chain and fastening to the grating. There was no evidence of such a lease as was supposed in the second réquest, if there had been the addition of a chain and fastening to the grating. There was no evidence of such a lease as was supposed in the second request ; if there had been, the addition of a chain and fastening never before there, in order to prevent accidents, could hardly be called repairs. He was made liable only for his own negligence. The previous remarks dispose of the question of liability for the displacement of the grating *119by the tenants or a stranger, when facilitated by the negligence of the defendant, which is embraced in the remaining three requests to charge before specified.

There being, therefore, no error in the refusal to charge, the judgment must be affirmed.