50 N.Y.S. 98 | N.Y. App. Div. | 1898
On the morning of the 8th day of February, 1896, a brick building belonging to the Phenix Chemical Works and situated on Thirty-ninth street near Second avenue, in the city of Brooklyn, was blown down in a violent storm and collapsed, causing the death of James Quigley, a cooper, who was a tenant on the ground floor. This action was brought by his administrator to recover damages for wrongfully causing his death against the Phenix Chemical Works, from which he rented the lower portion of the building, and also against the H. W. Johns Manufacturing Company, which had been a tenant of the upper part of the structure, and had made a series of cuttings or holes in the wall of the building, to the weakening effect of which its collapse was attributed. The plaintiff has recovered a verdict of $4,000 against both defendants, and both defendants have appealed.
The case presents some interesting questions of law, and it will be necessary for us to consider: (1) The alleged negligence of the H. W. Johns Manufacturing Company, the tenant creating the condition which is said to have caused the accident, but whose tenancy had ceased before the accident occurred ; (2) the alleged negligence of the Phenix Chemical Works, the landlord of the plaintiff’s intestate, by whose action or non-action the condition created by the H. W. Johns Manufacturing Company was allowed to continue after the termination of the tenancy of that-corporation, and (3) the alleged contributory negligence of James Quigley, the tenant, who was killed.
The building was a brick structure, between one hundred and thirty and one hundred and forty feet in length, thirty feet wide,
In 1891 the Phenix Chemical Works ceased to do business there and took out a lead chamber which occupied the upper portion, leaving-the building divided into two parts by a floor which constituted the ceiling of the basement. In January, 1894, the plaintiff’s intestate, James Quigley, hired the building from the Phenix Chemical Works for use as a cooperage, at a rent of fifteen dollars a month. His principal customer was the H. W. Johns Manufacturing Company, and in October, 1894,' with his sanction, the Phenix Chemical Works rented to the H. W. Johns Manufacturing Company all of the building except the ground floor, at the rate of fifteen dollars a month. In the correspondence which constituted the contract it was stipulated that, inasmuch as the H. W. Johns Manufacturing Company would have to put in various ceilings fittings, partitions, double windows, etc., entirely • at its own expense, it was understood that whatever it put into the building was its own property and could be removed when the premises were vacated.
The Johns Company went into possession under this contract of letting, and put up a second floor between the first floor and the roof. For this purpose it caused holes four inches deep to be cut in the pilasters to receive the ends of the beams or girders which were to support the floor. There were about twenty-one of these holes in all, and the size of .each girder was six by ten inches. The Johns Company continued to occupy the upper part of the building and use this floor after its construction was completed, until the
Although the evidence did not fix the precise moment at which the building fell, counsel agreed that it was about nine-twenty-five or nine-twenty-six a. m. A violent storm of wind and rain prevailed in the vicinity at the time. The records of the United States weather bureau in the city of New York showed that between nine-twenty and hine-twenty-five o’clock that .morning' the wind blew from the east at a velocity of fifty-two miles an hour, and that the extreme velocity for one minute was fifty-eight miles. The evidence of the local forecast official in charge of that bureau tended to show that similar conditions probably prevailed in that part of Brooklyn where this building stood. He said that a storm with wind of fifty-eight miles an hour was not a common occurrence in this locality, although such storms occurred every winter, and there are half a dozen storms every .winter running from fifty to sixty
From this statement of the facts it will be seen that the tenancy . of the Johns Company ceased many xveeks before the building fell. The theory upon which.the learned counsel for the plaintiff would hold that corporation is that, by its act in cutting the holes, it created an intrinsically dangerous nuisance, imminently perilous to the lives of the other persons in the occupation of the building; and he cites those cases in which the creator of such a condition has been made to respond for injuries resulting therefrom, even after his control over that condition has ceased. (Thomas v. Winchester, 6 N. Y. 397; Coughtry v. Globe Woolen Co., 56 id. 124; Devlin v. Smith, 89 id. 470.) But no such state of things existed here as was represented in those cases. In labeling a deadly poison as a harmless niedi•cine there is an obvious danger to every person who may have occasion to use the poisonous drug thus labeled; so it is plain that the defective construction of a scaffold, intended for the use of workingmen upon a lofty building, will be likely to imperil the lives of those who are called upon to make use of it. In this case, however, the cutting of the comparatively small holes in the pilasters, still leaving the pier at its thinnest .point just as thick as the neighboring wall,, cannot fairly be regarded as the creation of a condition of imminent danger which was at all obvious or readily apparent to
So far as the Johns Company is concerned, the true ground of liability would seem to be an entirely different doctrine of law. Where the owner lets different parts of the same building to different tenants, each tenant has the right as against every other that such other tenant shall not injure him by any active interference with the part which such other tenant occupies. Thus, it is plain that the tenant of the second story has a right that the first story shall remain intact so far as may be necessary for the support of the premises démised to him, and also that the roof on the story above shall not be interfered with so as to permit his premises to be injured by the action of the elements. This right is in the nature of an easement. (See Washb. Ease. [4th ed.] 639-647; Pierce v. Dyer, 109 Mass. 374.) Out of this easement springs the obligation on the part of one tenant to exercise reasonable care not to alter the cozv dition -of that part of the premises which he occupies so as to injure other tenants in. the same building. A failure in this respect constitutes actionable negligence. (Eakin v. Brown, 1 E. D. Smith, 36, 44.) Upon this doctrine the cause of action here asserted against the Johns Company is iiot for a violation of the easement, which would have accrued at the time the beams were removed from the holes and the holes were left unfilled, but rests, upon the violation of the obligatiozi arising out of the easement, which violation occasioned the death of the plaintiff’s intestate. In this view, the cause of action, being for negligence, did not accrue until the killing of Quigley by the fall of the building.
It remains to inquire, in, reference to this defendant, whether -the trial judge was right in charging- the jury that it was an unlawful thing to remove the floor from the building in November, 1895, without the consent of the building department of the city of Brooklyn. This instruction was given at the request of the plaintiff, the judge saying that he had not seen the Building Law, but that he assumed the proposition to be correct, and, therefore, charged it. It is sought to be sustained by reference to section 32 of chapter
As to the liability of the - Phenix Chemical Works, the responsibility of that corporation for the accident, if it is responsible at all, must arise out of its relation as landlord to Quigley as tenant. At. the time of the accident by which Quigley lost his life, the upper portion of the building in which the holes had been cut had been restored to the Phenix Chemical Works, and was wholly within the custody of that company as landlord. The rule, therefore, would seem to apply which was laid down by Van Brunt, J., in Bold v. O'Brien (12 Daly, 160) in this language : “ The landlord, as far as the tenant is concerned, where the tenant occupies but a small portion of the tenement, is bound to keep the parts of the tenement under his control in such a state of repair that the tenant may occupy his premises with safety.” The rule has frequently been asserted in the law of landlord and tenant that a landlord who occupies the upper story of his building, leasing the lower story to a tenant, may not negligently derange the construction of the upper
This brings us to the third important question in the case. It is argued with great earnestness that it is illogical to condemn the Phenix Chemical Works for failing to discover that the holes in the wall were dangerous, and at, the same time to acquit Quigley. Indeed, in the view taken by the trial judge, I do not see how a
It seems to me entirely possible, therefore, for a jury to take a view of the evidence in this case which would render the landlord liable, and would relieve the. tenant, who lost his life, from any charge of contributory negligence. In saying this, I do not mean that a jury ought to take that view, for the evidence is also quite capable of a view which would wholly exonerate both defendants. But that there was a question of fact'to be determined by a jury as against the Phenix Chemical Works, as well as against the IT. W. Johns Manufacturing Company, appears to be entirely clear.
There must be a new trial, however, not only by reason of' the error already pointed out, in charging the jury that the removal of the floor without the consent of the building department of the city
The learned counsel argues that this question was actually answered,, and the answer was not stricken out; and, perhaps, that is enough to avoid the exception, although the jury, if of the average intelligence, must have understood the ruling as excluding from their consideration the answer which had just been given. But the same argument will not apply to .the exceptions taken to the exclusion of the next two questions, which the trial judge refused to allow on the ground that they were solely for the jury. The first of these questions was: “ Q. Now state what, in your opinion, was the cause of the falling, of that building?” The second was: “ Q. Well,, how, in your opinion, did the force of the storm affect the building so as to cause it to fall — in what way?” The testimony which these questions sought to elicit was admissible, notwithstanding the fact that it called for an opinion upon the question or one of the questions which the jury were to determine. (Meyer v. N. Y. C. & H. R. R. R. Co., 98 N. Y. 645; Van Wycklen v. City of Brooklyn, 118 id. 424; Covert v. City of Brooklyn, 6 App. Div. 73.) There was no suggestion that Mr. Olcott was not a thoroughly
The-judgment should be reversed and newtriul granted as to both defendants.
All concurred, except Woodward, J., not sitting.
Judgment and order reversed and new trial granted,, costs to abide the! event.