26 N.Y.S. 903 | The Superior Court of the City of New York and Buffalo | 1893
The action was to recover $20,000 for personal injuries to the plaintiff by reason of alleged wrongful and negligent acts of the defendants. It appears that on June 12, 1889, the plaintiff, while passing upon the southerly side of Liberty street, in this city, on her way from the ferry of the New Jersey Central Railroad, at the foot of that street, struck her left knee against a barrel, “or something of that kind,” and fell over it. The barrel had no head
“They wrongfully and negligently removed the covering from the coal hole, * * * and wrongfully suffered and permitted the said coal hole to remain open, and wrongfully and negligently placed a tub, keg, or barrel, or something resembling a barrel, in the said coal hole, the same standing or protruding a short distance above the sidewalk, and there wrongfully and negligently kept and maintained the same.”
The answer of the cement company was, substantially, a general denial, while the defendant Bolting, the owner, pleaded in addition thereto the contractual relations existing between him and the cement company, whereby it agreed to do all the work required, not as the servant of the owner, but as an independent contractor, without any supervision, care, charge, or control on the part of the owner. The jury rendered a verdict against all the defendants for $17,500 damages. Without considering the arguments urged against the amount 'of the verdict, which, for present
While it is undoubtedly true, as a rule, that the public are entitled to an unobstructed passage upon the streets, including the sidewalks, of the city, and that any person, by unlawfully placing ■obstructions thereon, may make himself liable as for creating or maintaining a nuisance, it is also true that any temporary use of a highway or street that is rendered absolutely necessary from the necessities of trade, commerce, or the erection of buildings, that does not unnecessarily or unreasonably obstruct the same, is lawful, and not the foundation of such an action. Wood, Nuis. § 258; Com. v. Passmore, 1 Serg. & R. 219; People v. Cunningham, 1 Denio, 524; People v. Horton, 64 N. Y. 610; Welsh v. Wilson, 101 N. Y. 254, 4 N. E. 633; Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264. The temporary use of coal holes, if required by the exigencies of trying situations, does not, if sufficiently guarded, constitute, under all circumstances, a nuisance per se. To make it a nuisance, in that sense, it is necessary to prove that the use was unusual, unnecessary, or unreasonable, or that the manner of use was inherently dangerous, and that the rights and safety of the public had not been sufficiently respected. See City of Allegheny v. Zimmerman, 95 Pa. St. 287. The board of health had ordered the work to be done, and, if the owner had not caused it to be done in the manner he did, the board of health could and probably would have had it performed at his expense. It was not work inherently dangerous, if properly conducted. The acts to be performed were legal, and not, therefore, within the special rule which holds that, where work authorized by an owner will necessarily produce an injury to the public, he cannot, by contract with another, free himself from the consequences of the act; in other words, that where the very act is wrongful, as against the plaintiff, the defendant cannot shield himself from the consequences by making a contract with another to do the wrong for him. Brennan v. Schreiner, (Super. N. Y.) 20 N. Y. Supp. 130. The case more properly falls under the more familiar rule of respondeat superior, which lets the master in charge of the work assume all the responsibilities connected with it, or the manner of doing it. The cement company was an independent contractor, under this rule; and the principle is settled that:
“When the owner of land contracts with a builder to erect thereon a building according to certain plans and specifications, the latter to furnish all materials and labor, and to be answerable to the owner only for certain results, he will not be deemed the servant of the owner, although the work is to be done under the supervision of an architect selected by the owner.” Thomp. Neg. 909, 910.
The same learned author says:
“The rule is of especial force where the owner, in pursuance of such a contract, commits the entire care and control of the premises to the contractor. Here, the owner will not be liable for an injury to a traveler in consequence of an excavation in the street being left unguarded.” Id. 910.
The supreme court of the United States, in Robbins v. Chicago City, 4 Wall., at page 679, recognized the distinction before suggested, in these words:
“Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workman, the rule is that the-employer is not liable; but, where the obstruction or defect results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor, and authorizes him to do those acts, is equally liable to the injured party.”
See, also, Water Co. v. Ware, 16 Wall., at page 578; Gourdier v. Cormack, 2 E. D. Smith, 254; Milford v. Holbrook, 9 Allen, 21. The obstruction or defect complained of was clearly collateral to the work contracted for, and the case was thus brought within the rule laid down in the authorities cited, which exempts the owner from liability.
The most that can be said against the owner is that he expected! the contractor might possibly use the coal hole for tailing in material. 27o injury resulted from any such cause, but from one entirely separate and distinct. The removal of the coal cover, and the putting in of a barrel by the contractor, was something with which the owner had nothing whatever to do. These acts were performed without any direction from him, and they were not continued by any agency of his. The liability of an owner for injuries sustained by reason of the presence of coal holes on the sidewalk need not, for the same reason, be seriously considered, for-the mere fact that coal holes were there was not the proximate- or responsible cause of the injury of which the plaintiff complains. The trial judge charged the jury that the owner “was bound to-have his premises under such reasonable control, so that it would; disclose whether anybody was attempting, against his wishes, to-put a nuisance on the sidewalk.” The owner lived in Rockland county, and was under no obligation to make visits to 27ew York to* protect his sidewalk against obstructions placed upon it by persons without his permission, nor was he obliged to employ agents,, either for that purpose, or to prevent trespasses. 27or is the owner of real estate bound, at his peril, to stand by, and see to it that a contractor whom he employs to do a lawful act does not, for the-
“That can only be true on the theory that every owner of rented property in New York is bound to watch the sidewalks, and protect them against unauthorized trespasses, and is bound to know when such a trespass is committed. We are aware of no case that goes so far as that.” Wolf v. Kilpatrick, 101 N. Y. 146, at page 151, 4 N. E. 188, at page 190; Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132.
The trial judge, by this direction, imposed on the owner a stricter rule than the law required. Yo case fastening a legal liability on the owner, as such, was made out, and the motion to dismiss the complaint, as to him, should have been granted.
As to the contractors, different questions arise. They did the very acts of which the plaintiff complains, and if they were done wrongfully and negligently, as she charges, or if they were performed without proper regard to the rights of the public, on the sidewalk, they may have incurred a liability. Upon this point, the trial judge charged the jury:
“In such an action as the present, the plaintiff is only bound to prove the existence of the obstruction upon the sidewalk, that the defendants are responsible for its being there, and that she was injured thereby. * * * It is not necessary for the plaintiff to prove negligence.”
The court made this charge upon the theory that the obstruction was a nuisance per se, without regard to the peculiar circumstances under which it was placed there, nor the exigencies which gave rise to its being there, nor the length of time the obstruction continued, all of which were elements which should have gone to the jury as questions of fact to be determined by them before that conclusion could be reached as one of law. Certain qualifications were made in the charge, but not sufficient to free it from error. The complaint states a cause of action arising purely from acts of negligence, not from the erection or maintenance of a nuisance, and a recovery under such a plea cannot always be sustained on the theory that the proof showed a different ground of liability,—in this case, nuisance. Martin v. Pettit, 117 N. Y. 118, 22 N. E. 566; Reed v. McConnell, 133 N. Y. 425, 434, 31 N. E 22; Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698; Southwick v. Bank, 84 N. Y. 420, 428; Woolsey v. Trustees, etc., 69 Hun, 489, 494, 23 N. Y. Supp. 410.
There was testimony given at the trial by several witnesses familiar with such matters that the method of protecting coal holes adopted by the cement company while doing the work has always been found safe, and that this was the first accident ever heard of, where a barrel has been used in this way. This evidence was material on the subject of exercise of proper care, but was rendered nugatory by the charge “that it was not necessary to prove negligence;” for if the contractors were liable, independently of the presence of care or absence of it, then this testimony could have exercised no influence whatever upon the jury, who were, in effect, told that they might disregard it. The testimony of these wit
The view stated renders it unnecessary to consider the other exceptions taken. For the reasons already expressed, the judgment and order appealed from must be reversed as to all the defendants, with costs to appellants, to abide the event, and a new trial ordered. All concur.