Francis C. Neale, Inc. v. New York Steam Co.

| N.Y. App. Div. | Dec 1, 1911

Miller, J.:

It would unduly extend this opinion to state more than our conclusions with respect to some of the questions urged by the learned counsel for the appellants. We think the evidence of damage sufficient to sustain the verdict, though much of it was admissible only by consent of counsel. It satisfactorily appears that the damage was caused by the overheating of the plaintiff’s cellar and basement, which in turn was caused by the escaping steam from the breaks in the pipes, which in turn were caused by the subsidence of the soil of Church street, due to the construction of .the sewer, the excavation of Dey street and the sinking of the caissons. The plaintiff was not obliged to vacate its premises, and it was not shown that it omitted any precaution to reduce or minimize the damage which might reasonably have been expected of it.

Before considering the appellants’ responsibility for the result of the work being prosecuted by or for them, I shall examine their contention that that was not the proximate cause of the damages. It would seem that there was "an unbroken chain of cause and effect, connecting the work and the damage, but it must be conceded that the case is perilously near the line of fire cases in this State, beginning with Ryan v. N. Y. C. R. R. Co. (35 N.Y. 210" court="NY" date_filed="1866-03-05" href="https://app.midpage.ai/document/ryan-v--new-york-central-railroad-3626088?utm_source=webapp" opinion_id="3626088">35 N. Y. 210) and ending with Hoffman v. King (160 id. 618). Those cases turned on the' peculiar facts involved in each, and it seems to me that this case is more nearly analogous to the cases, wherein the Ryan case Was distinguished, referred to in the opinions in the Hoffman case. In this case there was no intervening cause to break the causal connection between the first cause and the final result, the injury to the plaintiff, and it seems to me- that the injury was the direct and natural result of the work done in connection with the defendants’ building operations, which any one, knowing the conditions, would have foreseen. If the plaintiff’s cellar had been flooded by water from the broken water main, we should have no hesitation in saying that it was the direct, natural and proximate result of the acts for which the appellants are sought to be charged, and it seems to me that the case is no different from the fact that, instead of actually entering the cellar, the escaping steam, coming in contact with the walls, overheated it.

The important question in the case is whether the appellants are legally responsible for the damage caused. The certificate, granted by the board of rapid transit railroad commissioners, expressly provided that its authorization, and the rights and privileges granted, were subject to certain limitations, terms, conditions and requirements, among others the following:

“ Provided, however, and it is expressly stipulated that the Tunnel Company shall in the course of construction and at its own expense maintain and care for all underground structures; and any necessary interference with underground structures shall be subject to reasonable regulation by the department of the government of the City in control or charge thereof.

“ The Tunnel Company shall at all times, by suitable bridging or other supports, maintain and support in an entirely safe condition for their usual service and to the reasonable satisfaction of the owners, all elevated railroad structures, street tramways of whatever character, water and gas mains, steam pipes, pneumatic tubes, electric subways, sewers, drains, and all other surface or subsurface structures encountered during the progress of the work. * * *

“ The Tunnel Company shall make good to the City all damage which shall be done to the property of the City by the construction or operation of the Railroad and shall make good to every owner of property abutting upon the Railroad, or which shall be injured by the work of construction or by operation thereof, all damage which shall be done to such abutting or injured property through any fault or negligence of the Tunnel Company, or successor thereof, or of any contractor, subcontractor or other person in the course of any employment upon the construction or operation of the Railroad or any part thereof. ”

The case is complicated by the difficulty of referring a particular injury to a particular piece of work, and by the fact that the court ruled as a matter of law that there was no evidence of negligence in the construction of the sewer, and that the jury have found that the other work was negligently done. I think that all of the building operations were so inseparably connected that they may be considered as one piece of work. The Terminal Building was to be used in part at least as a terminal station. It was constructed partly under a public street. The said certificate refers to the terminal station as a part of the structure of the railroad. The railroad itself was constructed along the west side of Church street, partly under private property and partly under Dey street. The sewer was doubtless constructed on the east side of Church street because, of the work to be undertaken for the construction both of the railroad and of the Terminal Building. The caissons were sunk and a cofferdam was constructed to prevent sand and water from coming in on the interior excavation when that should he made. The work within the building line involved both the construction of the railroad and the Terminal Building, and Dey street was excavated both for the railroad and for the Terminal Building. The work complained of was all done in the public street, and I think it must be regarded under the evidence in this case as having been done pursuant to the authority of the certificate, granted by the board of rapid transit railroad commissioners. Certainly, no other authority was shown. Both appellants, then, are in the position of having done, or authorized the doing of, work in a public street under the authority of the said certificate, which, either as a result of negligence in the doing of it or as a necessary consequence, broke the steam pipes of a public service corporation, having prior rights in the street, thereby causing injury to the plaintiff. I think that neither can escape liability on the' claim that the work was done by an independent contractor, and that the impossible burden was not imposed Upon the plaintiff of separating the damage done in the construction of the railroad from that done in the construction of the building, that done by the appellant, the Hudson Companies, from that done by the O’Rourke Construction Company and the Pilkington Construction Company, respectively, that resulting from negligence from that occurring as a necessary consequence of the doing of the work. The work was authorized and undertaken on the express condition that all underground structures be safely maintained and cared for, and that any injury done “through any fault or negligence of the Tunnel Company, or successor thereof, or of any contractor, sub-contractor, or other person in the course of any employment Upon the construction or operation of the Railroad or any part thereof ” be made good. The appellants assumed the absolute duty safely to maintain the sub-surface structures, and they or their sub-contractors were at “fault” in failing to discharge it. It is now settled that a person injured by a breach of that duty, though not a party to the contract, has a right of action. (Continental Asphalt Paving Co. v. Hudson & Manhattan R. R. Co.., 143 A.D. 338" court="N.Y. App. Div." date_filed="1911-03-10" href="https://app.midpage.ai/document/continental-asphalt-paving-co-v-hudson-5219156?utm_source=webapp" opinion_id="5219156">143 App. Div. 338; Smyth v. City of New York, 203 N.Y. 106" court="NY" date_filed="1911-10-03" href="https://app.midpage.ai/document/smyth-v--city-of-new-york-3598142?utm_source=webapp" opinion_id="3598142">203 N. Y. 106.) Although the work of constructing the railroad was for a public purpose, the right to undertake it was conditioned upon the assumption of the said absolute duty, and it is, therefore, immaterial whether the failure to discharge it was due to negligence.

The complaint made no reference to the franchise pursuant to which the work was done, the plaintiff merely alleging its conclusion that it was the duty of the appellants so to perform the work as not to injure the plaintiff or cause the steam pipe or water main to leak and to compensate the plaintiff for any damage sustained. Obviously, that averment referred to the duty imposed by the certificate granted the railroad company, which was received in evidence without objection. We think it is now too late for the appellants to raise the point that the contract, for breach of which the action was brought, was not sufficiently pleaded, and that the specific findings of the jury entitle the plaintiff to an affirmance of the judgment.

The judgment and order should be affirmed with costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment and order affirmed, with costs.