83 N.Y.S. 714 | N.Y. App. Div. | 1903
Counsel for the respondent contends that the accumulation of this large body of water in a tank above the surface of the earth and allowing it to be precipitated on adjacent premises where the plaintiff was lawfully at work in the employ of the owner or lessee thereof Constituted a trespass, for which both.the gas company and the contractors are responsible since they participated therein, and that they are liable for the injuries inflicted upon him regardless of any question of negligence.
It has been held that an owner of land is liable in trespass for damages caused to persons or property upon a highway or neighboring premises, no matter how carefully the work is conducted, by-falling rock blasted in making an excavation for improving his premises, and that' if the work is done by an independent contractor the contractor alone is liable. (Sullivan v. Dunham, 161 N. Y . 290, and cases cited ; St. Peter v. Denison, 58 id. 416 ; Hay v.
Upon the trial the plaintiff did not rely upon the doctrine of res ipsa loquitur, but assumed the burden of pointing out the particular negligence with which he charged the defendants. The precise negligence charged and presented by the evidence is improper construction or workmanship in punching the bottom course of side plates which were too thick to render that a safe method of making'holes for the rivets, in failing to ream the holes after punching, in con-vexing the sides of the plates that were next the die-in punching, and in failing to discover and reject plates, in which incipient cracks had been caused by. the punching process. This .work was done by the contractors. There is evidence from which the jury might have inferred that it was done with the knowledge of the chief engineer of the gas company, who was its authorized agent daily in charge of supervising the work, and there is also express evidence that this departure from the method of. performing the work provided for in the plans was made by the direction of the chief engineer. We are of opinion that this evidence was sufficient, not only to require the submission of the case to the jury as against the gas company and contractors, but to justify a finding of negligence on-the part of all defendants. The uncontroverted evidence is to the effect that the plans and specifications wei-e adequate, if followed, not only to produce a tank of sufficient strength to sustain all the water that it would hold, but to afford a factor of safety of three. There was no storm, no evidence of any external violence, and the record is barren of any fact or circumstance tending to account for this accident upon any theory except unskillful and improper construction and workmanship with respect to punching instead of drilling these holes, unless there was some flaw or defect in the material, which is not specifically pointed out by evidence.
Counsel for the gas company contends ■ that it delegated the performance; of this work to independent contractors of reputed competency and skill; that the'work was still in the hands of-the contractors, had not been accepted' by it, and that, therefore, it is not responsible. We regard this argument as untenable. It is claimed -on-'the other hand that the gas company retained such
Liability of the gas company may, we think, be predicated upon the exceptions to the rule that a person is not responsible for the negligence of an independent contractor to whom it lets the performance of the work, which are well stated in Berg v. Parsons (supra), as follows : “ There are certain exceptional cases where a person employing a contractor is liable, which, briefly stated, are: Where the employer personally interferes with the work and the acts performed by him occasion the injury; where the thing contracted to be done is unlawful; where the acts performed create a public nuisance ; and where an employer is bound by a statute to do a thing efficiently and an injury results from its inefficiency., * * * In none of those exceptional cases does the question of negligence arise. There the action is based upon the wrongful act of the party, and may be maintained against the author or the p>er-son performing or continuing it.” The exceptions to the rule are stated to the same effect in Engel v. Eureka Club (137 N. Y. 100) ; in Uppington v. City of New York (165 id. 222), and in Deming v. Terminal Railway of Buffalo (169 id. 1, and cases cited). (See also Heffernan v. Benkard, 1 Robt. 432 ; Lockwood v. Mayor, 2 Hilt. 66.) Of course there was no contractual liability between .the gas company and the pffaintiff, but the conrpany owed him and all others upon adjacent premises or the highway the duty to exercise reasonable care in the use of its own premises to the end that they might not sustain injury or damage from any buildings or structures thereon. The evidence brings the case within the rule stated by the Court of Appeals in Cochran v. Sess (168 N. Y. 372) : “Any one who participates in the construction of any structure which is obviously dangerous to human life is a party to the creation of a nuisance, and engaged in an active wrong for the consequences of which he may be subjected to pecuniary responsibility.”
The court charged the jury, and we think properly, that the doctrine of res ipsa loquitur applied to both the owner and the contractors. (Mullen v. St. John, 57 N. Y. 567 ; Volkmar v. Manhattan Ry. Co., 134 id. 418 ; Hogan v. Manhattan Ry. Co., 149 id. 23 ; Wolf v. American Tract Society, 164 id. 30 ; Griffen v. Manice, 166 id. 188 ; Wittenberg v. Seitz, 8 App. Div. 439.) It was applicable to the owners on account of their ownership, possession of the premises and supervision of the work, and it' was applicable to the contractors because they constructed the tank, participated in filling it with water, and were in charge of the work.
The learned court, however, erred in charging plaintiff’s first request, to which counsel for the owner and contractors duly excepted. This request was as follows : “ The jury, may take into consideration the fact that experience teaches that water tanks, if properly constructed, do not break without adequate cause. And if the jury find that there is no evidence of external violence or other adequate cause, the fair presumption is that the breaking of' the tank occurs through some serious defect in its condition, which could scarcely have escaped the observation of the persons in control thereof, and the jury may infer negligence tin their part.” ' Even under the doctrine of the rule of res ipsa loquitur this was nót a proper instruction-. By virtue of-that rule the plaintiff makes a prima facie esse
Various exceptions to the admission of evidence are..assigned as error. Evidence that the chief engineer directed a departure from the plans with reference to drilling these holes was competent and material, but it was not proper to show it under objection and exception by' a leading question to the effect that any departure from the plans was made by direction of the chief engineér.. In the examination of his expert, counsel for the plaintiff persisted in calling for opinion evidénce, which, to some extent, invaded the province of the jury and trespassed upon their functions. This-may be avoided on the new trial, and it is unnecessary that we should take up and analyze the different questions to which objections and exceptions were interposed, and determine which were and which were not - correctly ruled upon.
There are also other exceptions to the charge which present errors, but they are principally the result of conflicting instructions given at the request of counsel for the respective parties, inconsistent with the main charge, which was substantially correct.'
It follows, therefore, that -the judgment and order should be reversed and a new trial granted; with costs to appellants to abide the event.
Patterson and O’Brien, JJ., concurred ; Van Brunt, P.J., and McLaughlin, J., concurred in result.
Judgment and order reversed, new trial ordered, costs'to appellants to abide event.