Burke v. Ireland

The first action is brought by the plaintiff, as administratrix of her deceased husband, who was killed by the collapse of a building in the course of erection on the land of the appellant. The appellant and John H. Parker entered into an agreement whereby Parker contracted to erect the building according to certain plans and specifications prepared by one Behrens, an architect. ■ Parker entered into a subcontract with John M. Cornell, by which the latter agreed to furnish the structural ironwork requisite for the building, and into another subcontract with Joseph Guider, who agreed to do the plastering. The construction of the building had so far proceeded that at the time of the accident the* roof was on and the building in part inclosed. The plaintiff’s intestate at the time was engaged as a plasterer in the employ of Guider, the subcontractor. While the building was at this stage of construction it collapsed, and by its fall many persons, including plaintiff’s intestate, were killed or injured. The plaintiff brought this action against the appellant as owner, Parker as contractor, and Cornell as subcontractor, alleging negligence in the prosecution of the work, which caused the building to collapse. On the trial evidence was given tending to show that the plans and specifications of the building were faulty and defective; that a building erected in accordance, with such plans would not be reasonably, safe or secure; and that in some respects the plans and specifications were in violation of the building law. Evidence was also given tending to show that the foundation of the pillar which probably first failed, and thus brought on the fall of the building, was improper, in that the thickness of the concrete was insufficient to bear the weight imposed on it, and also because the concrete was laid in part over earth and in part over an old cistern wall, which resulted in unequal settling of the foundation, and thus caused it to break. There was further evidence to the effect that the iron pillars designed to carry the floors were insufficient in size, and that one of the pillars at the point where the building first failed was of improper quality and character and defective workmanship. The contract called for concrete foundations 18 inches thick. It appeared by the testimony of Murray, the foreman of the contractor Parker, that the concrete was laid only 12 inches thick, and Murray testified that this change was made in pursuance. of directions given to him by the architect, Behrens. The contract between Ireland and Parker did not cover the whole improvement; for the clearing away of the old structures on the land and the excavation of the ground had, at the time of the execution of the contract, already been let to another person, one Joseph Garry. It appeared from thfe testimony of Murray that he gave the directions to Garry to make the excavation for this pier, and that Behrens, the architect, did not see the excavation until it was filled up with concrete. Parker’s contract contained this specification: “No concrete shall be-laid in trenches until same has been examined by the architect, as concrete must not be laid on a disturbed bottom. No finished concrete work will be accepted unless same has been approved by the architect

The first contention of the appellant is that his motion for a non-suit should have been granted. It is insisted that he performed his whole duty when he employed a competent architect and a competent builder, and that he is not liable for negligence of the architect in the preparation of the plans, nor for the negligence of the contractor in the prosecution of the work, unless he knew of those defects. It is a sufficient answer to say that the question of how far an owner, being a layman, may .be relieved from liability for the construction on his land of a dangerous or defective building, by the employment of a competent and proper architect, does not arise on the facts in this case. It does not appear, except from the recitals in the contracts, that Behrens was an architect at all, much less that he was a competent or proper one; nor does it in any way appear that Behrens was responsible for the plan and character of the building, and that the appellant was not. For aught that there is in the record before us, the whole plan and character of the building, the size of the foundation, of the walls, of the posts and the girders may have wholly proceeded from the direction of the appellant. The duty or discretion of an architect is confined within such limits as his employer imposes upon him. The appellant having contracted for the construction of this building, if the building was inherently defective and dangerous, prima facie he is responsible therefor; and if he can escape liability for such inherent weakness and danger bv the employment of an architect, and his acting upon the architect’s advice, it was incumbent on the appellant to affirmatively show those facts. Therefore the employment or advice of the architect is not an element in this case. In this view of the evidence the case is entirely similar to that of Pitcher v. Lennon, 12 App. Div. 357 , 42 N. Y. Supp. 156 . In that case the owner of a building in the course of construction, who had prepared the plans of the building and supervised its erection, was held liable for the death of one of the workmen caused by the collapse of the structure in conse

But, though the appellant was' responsible for the defective design of the building, I do not think that he was necessarily responsible for any negligence by Parker in the execution of the contract. The respondent contends that the building laws which prescribe the manner in which structures are to be built make the owner an absolute guarantor that the building- erected should be in compliance with the statute. The general rule is that the owner- of real property is not responsible for the negligent act of an independent contractor who performs work thereon. To this rule certain cases are exceptions, as where the act which the oivner has directed to be done itself creates the injury or is imminently dangerous. There is another class which forms an exception, where the duty is imposed by law or the act done is authorized only by some special franchise or privilege granted the owner. A chute or coal hole maintained in the street by the owner of the abutting property, and excavations in the highway made in the course of laying a railroad or gas mains therein, are examples of the latter class, and in such cases the person exercising the privilege or franchise must see to it, at his peril, that the contractor properly guards the obstructions created in the street. But the owner obtains by the building laws no privilege to construct buildings on his property. He has the right to improve his property as he will (not creating a nuisance), without the authority of any statute, and the building laws merely limit, in the exercise of the police power, existing rights; they do not confer any. If the structure erected, or in the course of erection, becomes a nuisance, the owner, even though he be not responsible for its original condition, doubtless at some point of time becomes responsible to third parties for its maintenance. Vogel v. Mayor, etc., 92 N. Y. 10 ; Timlin v. Oil Co., 126 N. Y. 514 , 27 N. E. 786 . But that principle is not at all applicable to the present case. Hone of the workmen on the building were the servants of the owner .of the land, but either those of the contractor or of the subcontractor. The owner did, under the doctrine already discussed, owe such persons the duty of not imneriling their lives by his own negligence or affirmative act; but I know of no princinle under which there rested upon him any obligation for their preservation from the negligence of their master or of fellow servants. In fact, I should be inclined to think they were as well able to judge the character and competency of

The evidence on the trial tends to establish that one of the most probable causes of the collapse of the building was the defective character of the foundation under the pillar, where the concrete was laid partly over earth and partly over the old cistern wall. Such, too, is the claim of the counsel for both parties. The question of who was responsible for the defective character of that foundation is not free from doubt. Parker’s contract did not include the excavation. Under the specifications, a uniform thickness of 18 inches of concrete for the piers is prescribed. No provision whatever is made, either in the contract or in the specifications, for the contingency that excavation to the depth of two feet might not find soil on which it was safe to rest the foundation of the piers wMch were to carry the walls or columns. It might have eventuated, as probably was the actual case, that it was necessary to excavate below the bottom of the cistern wall before it would be safe to commence the laying of the concrete foundation. Or it might even have happened that quicksand would be found, and it would be necessary to drive piles or adopt some other special means to provide a secure place on which to lay the concrete. Under the contract, no duty was devolved upon Parker in these respects except one,—that no concrete should be laid in trenches until they had been examined by the arcMtect. The duty, therefore, of providing a proper foundation upon which the concrete was to be laid, and of passing upon and determining the sufficiency of that foundation, rested on the owner or his agent. If there was negligence in this resnect by the owner or agent, it would not absolve the former from liability, even though the contractor was also careless. The evidence tends to show that the trench was laid out by the foreman of Parker, the contractor, and that, the excavation was made and the concrete laid in the absence of the architect. (In the second case the evidence is

The second action (Mary Savage, etc., v. John B. Ireland, etc.) is brought to recover damages for the death of plaintiff’s husband, which was caused by the same accident detailed in the first case. In this case the evidence varies from that given in the first case. There was testimony given by the appellant, Ireland, tending to show that the

In disposing of this appeal it is unnecessary to go over the discussion of the law which we have entered upon in the preceding case. We think there are at least two errors fatal to the plaintiff’s recovery. The appellant asked the court to charge that “the defendant Parker was an independent contractor, and for the negligence of Parker or of his servants the defendant Ireland was not liable in this action.” And also: “The defendant Ireland is not responsible for the poor material, poor casting, or blowholes in the column on the sixth floor. If the jury find that the collapse was caused, as claimed by the plaintiff, by the failure of the column on the sixth floor by reason of its weakness caused by uneven casting, blowholes, and poor iron, they must find a verdict for the defendant Ireland.” Both of these requests were refused, and to such refusals the defendant properly excepted. Under the view of the law which we have already expressed, that the owner was not liable to the contractor’s servants or subcontractors and their servants for the negligence of any of those persons in the performance of the work, the appellant was entitled to have both of these requests charged. The respondent criticises the second request as improper, in that it failed to limit its application to the case of a finding that the defective iron was the sole cause of the collapse; in other words, that the defendant’s negligence in other respects might also have contributed to the fall of the structure, and that in such case the fact that he was responsible for onlv one of several concurring causes would not relieve him from liability for the disaster. The legal proposition thus asserted is doubtless correct, but we do not regard the request as subject to the criticism passed on it. We think the request fairly referred only to the defective column being the sole cause of the falling of the building. However this may be, no such criticism can be passed on the first request. That presents only the question of the negligence of the contractor and the appellant’s responsibility therefor. He might be responsible for negligence as to the same matter as to which the contractor was also negligent, but then, in our view of the law, his responsibility would be solely for his own negligence, and not for the negligence of the contractor. For these errors the judgment must be reversed and a new trial granted.

Thus far we have not discussed the question which, though not presented by either appeal, is necessarily involved in the cases, and will in all probability arise on a new trial,—the question of how far the

The judgments and orders appealed from should be reversed, and a new trial granted, costs to abide the event. All concur.