McNulty v. Ludwig & Co.

109 N.Y.S. 703 | N.Y. App. Div. | 1908

Miller, J.:

As the plaintiff was passing along the sidewalk of a public street in front of defendant’s premises a sign fell from over the entrance to said premises, striking the plaintiff and inflicting the injuries for which he has recovered. It appeared that the sign rested on a cornice which projected about six inches from the face of the wall; it was fastened by means of hooks driven into the wall, the top slightly tilted out, but it does not appearthat it projected over the sidewalk. It had been put in position about two weeks before the accident by an independent contractor.' The accident happened during a violent storm. The defendant sought to shield himself from liability by showing that he employed a competent and experienced man to whom he intrusted the performance of the work of putting up the sign, but the court ruled that that defense was not available and submitted to the jury the question whether reasonable care ivas exercised in putting up the sign.

The contractor was not the agent or servant of the defendant, and the latter was not liable for the former’s acts under the maxim respondeat superior. The work of putting up the sign was not inherently dangerous, and it is difficult to perceive how the defendant can be held negligent for the act of another, not his servant, to whom he had the right to intrust the performance of the work. (See Devlin v. Smith, 89 N. Y. 470; Burke v. Ireland, 166 id. 305.) It is not necessary now to decide whether there was sufficient evidence of negligent maintenance to take the case to the jury, because that question is not before us. The learned trial judge evidently ruled as he did upon the theory that the defendant was bound at his peril to see that the sign was properly fastened to the building and to keep it from falling into the street. But it seems to be settled in this State that the duty in such case is to use reasonable care. (Mullen v. St. John, 57 N. Y. 567; Hogan v. Manhattan R. Co., 149 id. 23. See, also, Boomer v. Wilbur, 176 Mass. 482; Garland v. Towne, 55 N. H. 55.) It might seem that the tendency of earlier cases in Massachusetts was to apply the principle of the leading case of Rylands v. Fletcher (L. R. 3 H. L. [Eng. & Ir. App.] 340) to .the case of the fall of an object from a building into the highway. (Shipley v. Fifty Associates, 101 Mass. 251; Gray v. Boston Gas Light Co., 114 id. 149; Gorham v. Gross, 125 id. 232; Khron v. Brock, 144 id. 516.) But an examination of those cases witli the case of Boomer v. Wilbur (supra) discloses that a distinction must be made between cases of nuisance and negligence. This case is not like the case of Sullivan v. Dunham (35 App. Div. 342; 161 N. Y. 290), .because in that case injury resulted from a trespass, from an affirmatiye act inherently dangerous. Of course, the fall of the sign was prima facie evidence of negligence; the rule res ipsa loguitur applied; but the defendant had the right to Overcome the presumption by showing that he was not negligent, for the reason that the sign had just been put up by a competent man upon whom he relied. The thing itself was no,t inherently dangerous ; it could only become so by negligence in doing it; hence the defendant could intrust the work to an independent contractor, unless he was bound at Ms peril to keep the sign from falling into street, but, as we have seen, he was only bound to use reasonable care in that regard. We have not considered the case from the standpoint of nuisance, because the complaint was drawn, and the case was tried and submitted to the jury, on the theory of negligence.

The judgment must be reversed.

Jenks, Hooker, Gaynor and Bich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.