McNamara v. City of New York
129 N.Y.S. 230
N.Y. App. Div.
1911
Check Treatment
Scott, J.:

This is an appeal by the defendants, City of New York and Terry & Tench Company, from- a judgment entered upon a verdict, and from an order denying the motion.for a new trial. The Terry & Tench Company neither appeared upon the argu-. ment nor filed a brief, and we are, therefore, concerned only with the appeal of the City of New York. The action is for damages for personal injuries. The city of New York contracted with John 0. Eodgers to'construct a viaduct over the railroad tracks at West One Hundred and Seventy-seventh street. Eodgers sublet the steel construction work to the Terry & Tench Company. On the day of the accident the employees of the latter company were engaged in painting the steel superstructure, using in the prosecution of this work planks to serve as footholds or scaffolds. As the plaintiff walked under the structure, one of these pieces of plank fell, hitting him on the head and producing the injuries for which he sues. As against the city the case was allowed to go to. the jury upon the theory that, having authorized the erection of the structure, it was bound to exercise care to protect those who had occasion to pass under it. In submitting the case to the jury the court dwelt upon, and was -undoubtedly influenced by, the supposed analogy between this case and one in which the city, by contract or license, expressly authorizes the erection of a dangerous obstruction in the highway. There is in fact, however, no analogy. In the case of dangerous obstructions, such as excavations and the like, the very thing authorized to be done is inherently dangerous. In tire present case there was nothing inherently dangerous in painting the viaduct; and although the ■city may have had full notice and knowledge that the sub-contractor was about to do the painting, there was no reason why *506it should anticipate that the work would be so done as to endanger the safety of passers-by. The rule applicable to such a case is stated by Judge Dillon thus: “ But the municipality ■ is'not liable when the obstruction or defect in the street causing the injury is wholly collateral to the contract work and entirely the result of the negligence or wrongful' acts of the contractors, sub-contractor or his servants. In such case the immediate author of the injury is alone liable.” (2 Dillon Mun. Corp. [4th ed.] § 1030.) The, painting of the viaduct undoubtedly might have been so carefully done that no passer underneath would have been injured. For the lack of care, if there was such a lack, the city is certainly not liable. “If the act to be done may be safely done in the exercise of due care, although in the absence of such care injurious consequences to third persons would be likely to result,' then the contractor alone is liable, provided it was his duty under the contract to exercise such care.” (Engel v. Eureka Club, 137 N. Y. 100.) Of course the plaintiff cannot recover against the city under • the doctrine of respondeat superior, because neither the contractor nor the sub-contractor nor the employees of the latter were servants or agents of the city. (Froelich v. City of New York, 199 N. Y. 466.) The respondent seeks to sustain the judgment appealed from on the authority of Hume v. Mayor, etc. (74 N. Y. 264), wherein the city was held liable for damages resulting from the fall of a wooden awning erected over the sidewalk. Again the cases are not analogous. In the Hume case it was specially found that the awning' was visibly and obviously constructed in such a manner as to be dangerous to persons using the sidewalk, and that it'had existed in this condition for a sufficient length of time to impute notice and knowledge to the city. Under these circumstances it was held that the structure was inherently dangerous, and, in that sense, constituted a nuisance and an unlawful obstruction in the highway. In the present case there is no claim that the viaduct is inherently dangerous, nor can it be claimed with reason that the act of painting it iá, inherently, an act dangerous to persons using the highway. We can see no ground, , on the undisputed and indisputable facts, upon which a judgment against the city of New York can be upheld. As to tibe *507city the complaint should have been dismissed at the trial, and the judgment as against it must be reversed, and since under the circumstances no evidence can be produced to fasten liability upon the city, the complaint, as against it, will now be dismissed, with costs to said city, appellant, in this court and the court below.

Ingraham, P, J., McLaughlin, Miller and Dowling, JJ., concurred.

Judgment and order reversed as against the city and complaint as against it dismissed, with costs to said appellant in this court and in the court below.