115 N.Y.S. 320 | N.Y. App. Div. | 1909
On the morning of September 28, 1907, as the plaintiff on his way to his office was passing along Montague street in the borough of Brooklyn, in front of the Arlington Apartment House, a brick, falling from the top of said building, a distance of 100 feet, struck him on the head and inflicted injuries for which a jury has awarded him the sum of $40,000. The judgment is against both defendants, the owner and a contractor engaged at the time in putting on a new roof; and both appeal, each asserting that there is no evidence of negligence against it and that errors were committed by the trial judge. ,
The evidence discloses that a fire had occurred on the ninth of September which had partly consumed the woodwork of the three upper stories and the roof and had wholly burned a wooden tower, as it is called, built on the brick wall above the tenth floor, on a corner of the building next to the street. The supports of the metal roof cornice in front of the building were at least partly burned, and the seams of the metal work were so affected by the heat that a part fell into the street and the rest remained hanging. There is evidence tending to show that the mortar on the top of the brick wall had so been damaged as to require the relaying of some 2,000 bricks; and that, at the extreme top, there were a number of bricks, a part of the wall, so loose that they could be picked out by hand. While that evidence is challenged by the defendant owner, it- is supported by the reasonable inference of the effect of the fire and fully justifies the conclusion that that was the condition. Ho claim is made that the loose bricks were taken out of the wall or that any provision was made to repair or change its condition from the time of the fire to the time of the accident. Pending the arrangements preliminary to making general repairs, it was neces
It. cannot be doubted that the owner of this building should have ascertained the condition of the walls as soon as possible ■ after the fire. The defendant contractor had actual knowledge of their condition, as its president testified to it.
Those in possession and control of tall buildings, beneath which pedestrians have to walk, should exercise care commensurate with the danger. The cases of. objects falling on pedestrians in public
I think the reasonable inference is that the brick was in some way dislodged by the men at work on the roof; and for the purposes of this case it seems to me immaterial whether the immediate act of such workmen was negligent or not. The defendant owner, employed a contractor to put a roof on the building and to set the roof beams in a wall which had been damaged by fire, without making any provision to repair, or insure the safety of, the wall, or to protect the pedestrians on the street. A reasonably prudent man would have apprehended that the doing of that work might dislodge some of the loose bricks and cause them to fall into the street. It may be a matter of speculation whether the immediate act which caused the brick to fall was careless ; but the plaintiff is not to .be turned out of court for that. -The defendant owner was negligent for not repairing the wall or taking any measures to protect the public, and it cannot free itself from the consequences of its carelessness because the negligence of some one else for whom it was not responsible, may have concurred with its own. It could not discharge its duty to protect the piublic from this dangerous wall by letting a contract, not to repair the wall, but to make it more dangerous. The defendant contractor is in. no better case. It undertook to construct this roof and to set roof beams into a wall which, it knew, was in an unsafe condition. If its men were careless) of course it is liable; and, even though they were not careless, the jury might well say that a man undertaking to set roof beams into, and construct a roof against, an unsafe wall 100 feet
One of the cases relied upon by the defendant owner is the case of Wolf v. American Tract Society. (164 N. Y. 30). In that case the plaintiff Was injured by a brick falling from a building in the course of construction, upon which nineteen different contractors were employed, and there was no proof as to who set the brick in motion. The plaintiff sought to hold in the Court of Appeals, a judgment- against the general contractors, but did not appeal from a judgment dismissing the complaint as against the owner. Had the respondent in that case been the owner who had undertaken, through the instrumentality of nineteen different contractors,, to construct that building, an entirely different question respecting his affirmative duty , to protect pedestrians would have been presented, and I apprehend that the case would have been decided the other way. It will be seen from the two opinions in that case that the point of. difference was. whether the duty of the owner to protect the public.devolved on the-general contractor.
I am unable to pierceive how the doctrine that one is not liable for the negligence of an independent contractor has anything' to do with -this case. • The defendant owner has not been made liable for the negligence of the contractor, but for his omission to discharge an affirmative duty to the public. If it had employed a -contractor to repair and make safe -this wall, and, in the prosecution of that woi'k, a brick had been dislodged, the doctrine contended for might be applicable. Although I am not now prepared to- say that, even in that case, the affirmative duty of the owner to pedestrians in the street could be delegated.. Hone of the cases cited by the . appellant involve that question. It -is sufficient for the purposes of this case that the owner never contracted with any one to remove the loose bricks from this-wall, to repair it, or to -make it safe ; but, in place of that, contracted for the doing of work which was bound to increase the danger.
Section 80 of the Building Code was admitted in evidence. It provides that “ Whenever buildings shall be erected or increased to over sixty-five feet -in height, upon or along any street, the
Many criticisms are made by the appellant owner of the charge of the judge and of the theory upon which the case was tried. There were distinct grounds upon which tlie defendants might have been held liable jointly, or one of them separately. There was a dispute whether the wall was left, in a dangerous condition after the fire, and as to what extent the work actually done by the Gabler Company’s men involved the wall. It is not easy to present such issues to a jury without confusing them. But I think'that was done in this case. The learned trial judge charged the jury in substance (1) that if the wall was left in an unsafe and dangerous condition so that material was apt to fall and was in fact falling from it, the owner, if it knew it, or in the exercise of. reasonable care should have known it, was called upon to protect pedestrians; and he left it to the jury to say what it should have done to that end, i. e., whether it should have put up a shed, a barrier or sign, or have done something to protect or warn pedestrians; (2) that if the wall was not left in a dangerous condition or if the brick fell solely because of the negligence or carelessness of 'the Gabler Company’s men, that defendant alone and not the owner was liable for the accident; (3) that if the work called for by the Gabler contract was intrinsically dangerous and could not be done without material falling on people, no matter how much care was used, and the con
At the time of the accident the plaintiff was a young man twenty-nine years of age, but recently married. He was a graduate of Phillips Exeter Academy and "was employed as private secretary to a member of a firm of brokers who compiled data and made estimates of the value of railroad properties. He had nearly qualified to be licensed as a public accountant. He was receiving a salary of $1,800 a year- and a bonus at Christmas. He suffered a compound, comminuted, depressed fracture of the skull; broken pieces of bone were removed, leaving a hole or opening in the skull of two and one-lialf by two and tliree-fourths inches. The surgeon who attended him testified that the dura mater was punctured, but .that there was no. visible injury to the pia mater. There was sufficient evidence to justify the jury in finding that lie is now suffering from progressive traumatic epilepsy as the result of his.injuries. While $40,000-would be too much, based solely upon earning power of $1,800, the jury were entitled to consider "the prospects of this
The judgment should be affirmed.
Present — Hirschberg, P. J., Jenks, Gaynor, Rich and Miller, JJ.
Judgment and order unanimously affirmed, with costs.