134 N.Y.S. 305 | N.Y. App. Div. | 1912
Lead Opinion
'.The appellants, dismissed when they rested at the trial severally representatives of two persons killed, one a child playing on the street, and the other a workman in an excavation for a sewer in the street, charged culpable negligence against the city of New York and Rodgers and Hagerty, its contractors to make the sewer, as well as the Brooklyn Union Gas Company, whose pipes were suspended in the excavation, but against whom the appeal unquestionably fails. The excavation in Gold street, in width eighteen feet, occupied most of the roadway, while its depth was from forty-five to forty-seven feet and its length some one hundred and thirty-five feet. Its sides were sheathed and at intervals of five and one-half feet for its entire length cross braces, some ten inches square, rose with intervening spaces nine or ten feet. From beams on the surface of the excavation were suspended the lines of gas pipes and electric wires. As the work advanced the completed portion of the excavation so far as convenient was filled, the beams that interfered with the advancing work were removed, as this enabled a form in use to be pushed forward. At the time of the accident the men had, through a distance of some sixty feet, removed beams two tiers from the bottom of the sewer, when the timbering before or after an explosion fell in, and the land adjacent to the excavation, including portions of the sidewalk, was drawn in for its entire length. The respondents’ position, as understood, is that no cause of action in favor of either plaintiff is proved against anybody, inasmuch as the cause of the ruin is not known. The child, whose case is first considered, in rightful use of the street, was killed because the sidewalk on which he stood was drawn into the excavation. Such an engulfment is so abnormal that the persons responsible for the excavation and the appropriation of
In the first action, judgment entered May 8, 1911, and order denying motion for new trial reversed and new trial granted, costs to abide the event. Judgment entered May 5, 1911, and order denying motion for new trial reversed as to defendant The City of New York, and new trial granted, costs to abide the event, and affirmed as to defendant Brooklyn Union Gas Company, without costs. Memorandum by Cabe, J. Bubb and Woodward, JJ., concurred; Thomas, J., read for affirmance as to the judgment entered May 5, 1911, and the order denying motion for a new trial, with whom Jerks, P. J., concurred, and for reversal of judgment entered May 8, 1911, with whom Jerks, P. J., Bubb, Cabe and Woodward, JJ., concurred.
In the second action, judgments and order reversed and new trial granted, costs to abide the event, as to the defendants Rodgers and Hagerty, and unanimously affirmed, with costs as to the defendant The City of New York.
The following is the memorandum written in the action of Brady v. City of New York :
See 11 Misc. Rep. 715.—[Rep.
Concurrence Opinion
While I concur with Thomas, J., that the judgment and order should be reversed as to the defendants Rodgers and Hagerty, it seems to me that the judgment and order should he reversed likewise as to the City of New York on the ground that it was a question for the jury whether the City of New York had under the circumstances shown reasonable care and diligence in the maintenance of the street surface during the progress of the sewer construction.