88 N.Y.S. 737 | N.Y. App. Div. | 1904
Lead Opinion
Injured as the result of a fall due to her tripping over a flagstone in the sidewalk, raised two or three inches above the level of the adjacent surface, in front of defendant’s premises, the plaintiff has maintained her action for defendant’s negligence, and defends on this appeal the judgment and order denying the defendant’s motion for a new trial. Sometime after the defendant built its stables upon the premises in question, it let a contract for the building of a stone wall near the rear of its lot in West New Brighton, in the borough of Richmond, city of New York, and to accomplish this work it was necessary for the contractor to, and he actually did, draw into the lot across the flagstones composing the sidewalk in front of defendant’s premises, heavy loads of stone and other building materials. The principal evidence in relation to the manner in which the surface of the sidewalk became defective was that of the son of the plaintiff, where he says that he remembers a stone wall being built at the rear of those premises, and that he recalls one morning in July, 1902, seeing a wagon loaded with stone going into the lane across the sidewalk. He came in that direction to take the car to go to his work, and walking down the street in question was held up by a wagon filled with stone; and he saw the front wheel turn over a flagging, and he saw the flagging on the south end come down, and the front end rise up. When the wagon went by, the stone fell back somewhat upon the other next to it. The evidence tended to show that subsequent to the month of July, 1902, the lapping stone grew worse as a result of the use of that portion of the sidewalk by the wagons of the defendant itself and by the carts .of an independent contractor who had purchased manure from defendant’s stables, and carted it away weekly. The appellant objects to the validity of the judgment on the grounds that the act complained of, which caused the original breaking of the surface of the sidewalk, was performed by some one other than the defendant and over whom it had no control, and also that even if the defendant could be held accountable for the act of the independent contractor, no duty devolved upon the defendant to maintain the sidewalk in reasonably safe condition.
We are unable to approve these principles. The true doctrine is quoted by Judge Cullen, who wrote the opinion in Downey v.
The same rule was the subject of discussion in Weber v. Buffalo Railway Co. (20 App. Div. 292), where Mr. Justice Green, writing, said:' “ The negligent act or omission, if established, constituted an unlawful invasion of the' plaintiff’s right of transit over the public highway. It appears clear enough to us that, under the circumstances of this case, a duty was imposed upon the defendant which it could not evade by employing a contractor to do the work. It could not get rid of the responsibility thus cast upon it by transferring that duty to another. It was not competent to get rid of such a duty by imposing, it upon an independent contractor. A duty rested upon the company, therefore, to insure such precaution in doing the work as to render the highway reasonably safe against the possibility of accidents to the traveling public.”
The nature of the work which the defendant had contracted to . have performed upon his premises created the necessity'for'carting heavy materials across the sidewalk in front of his premisesthe unsafe condition of the sidewalk resulted from its improper use in the prosecution of work beneficial to the defendant. Its wall could not have been built without the stone and materials being hauled across that sidewalk, “ the work itself” created the injury to the. sidewalk, and defendant cannot escape liability for damages resulting from the use of the walk in such manner as to interfere with, the rights of the public therein. The defendant received the advantage of the use of the sidewalk,- and could not rid itself of responsibility
As to the other - proposition raised by the appellant, we may say that it is probably true, as it urges, that the abutting owner is not bound to keep the sidewalk in repair, and is not responsible to travelers for defects therein not caused by himself. (City of Rochester v. Campbell, 123 N. Y. 405.) It is said that any other rule would tend to relax the vigilance of municipal corporations in the performance of their duties in respect to the repair of streets and highways and demoralize the public service thereby. It is equally well established, however, as an exception to this rule that where the owner of abutting property uses the sidewalk to his individual advantage, or interferes with the sidewalk in such a way as to interfere with the rights of pedestrians thereon, he must use reasonable care to see that such use does not render the sidewalk unsafe or dangerous. It was said in Matthews v. De Groff (13 App. Div. 356, 358) that “ where an abutting owner avails himself of a privilege which may be accorded to him of .placing something in or by the sidewalk which will serve as a convenience or easement to his premises he becomes also charged with the duty to see that the place thus used is maintained in a safe and prope. condition.” In Heacock v. Sherman (14 Wend. 58) it was held that the owner of the premises is bound to repair in consideration to private advantages. Trustees of Canandaigua v. Foster (156 N. Y. 354) was an action by the trustees of the village of Canandaigua against 'the owner of property abutting upon one of the streets of that village for the amount of a judgment that had been awarded against it in a suit by one who was injured in the use of the sidewalk in front of defendant’s, premises as a result of the giving way of a grate in the sidewalk, it being claimed that the grate was insecure because of the lack of reasonable care and repair on the part of the defendant Foster. There the Court of Appeals held that an implied duty arose that the owner of abutting property should use reasonable care in the inspection and repair of that grate, and the court said: “ It was built for his accommodation and was a benefit to his property only,
> The evidence warranted the finding that the defendant was negligent, and the judgment and order should be affirmed.
All concurred, except Woodward, J., who read for reversal.
Dissenting Opinion
I am unable to concur in the decision about to be made in this case. The only possible evidence of any disturbance of the flagstone walk producing the defect which caused plaintiff’s injury is that furnished by the plaintiff’s son, who testifies that in the summer of 1902 he remembers that a stone wall was constructed in the rear of defendant’s premises; that-he remembers one morning in July that he saw a wagon driven over the flagstone walk; that the wheel turned over a flagging, and that he saw the flagging on the south end come down and the front end raised up, and when the wagon went by the stone fell back a little bit on to the other ahead of it. He said he noticed when a wagon was going across that particular place it would raise the flag up, and it kept getting worse all the time; that he had seen wagons marked “ Siegel-Cooper Company ” going in and -out of that lane about once a week, but it appears conclusively that the only wagons of the latter description which he had seen were wagons moved over the walk by hand, when they were being placed in storage. The only wagon which is alleged to have misplaced the flagging, producing an obstruction over which the plaintiff fell, was one used by an independent contractor who was drawing the stone to be used in the construction of the rear wall, and just how the defendant can be held liable for this defect is one of the things which I have not been able to understand. If this independent contractor had driven his wagon over a sidewalk a mile up the street, and had produced the same condition there, would the defendant have been liable ? Clearly, when one lets a contract to an individual to construct a wall upon his own premises he does not assume responsibility for the negligence of the contractor in moving the materials to the place; he does not undertake the obligation that the contractor’s teamster shall be free from negligence in driving over the common highways, and it is difficult to understand how the defendant in this case could become responsible for the condition of the sidewalk in front of its premises, without ever having interfered with the same. Of course, if the work which the contractor undertook was essentially dangerous to the public; if it involved blasting in the public highways, or even upon the defendant’s premises, in such a manner as to throw the materials into the highway or upon the premises of other persons, the defendant
I think the judgment and order appealed from should be reversed and a new trial granted to the defendant.
Judgment and order affirmed, with costs.