McCleary v. Kent — 10 N.Y. Super. Ct. 27

Majority

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William McCleary v. Edward Kent and Richard Dougherty.

Headnote

The defendants, who had contracted to build a house, had employed a blacksmith, at a stipulated price, to make and finish a grating on the front area. The opening for-the intended grating was left without a covering or fence, and the pláintiff fell through it and was seriously injured.

Reid, that as it did not appear that the blacksmith was bound to guard and protect the opening except while engaged on his own work, the negligence to which the accident was owing was justly imputable to the defendants and their servant. Whether a principal contractor is liable for the negligence of a subcontractor is an undetermined question.

Judgment affirmed with costs.

(Before Dubk, Campbell, and Slosson, J.J.)

Feb. 6, 1854.

This was an action to recover damages for a personal injury sustained by the plaintiff in consequence of the negligence of

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the defendants in leaving a portion of an area, in front of a building which they had contracted to erect and finish, open and unguarded. The allegations in the complaint were denied by the answer.

The cause, upon the issues raised by the‘pleadings, was tried before the Chief Justice and a jury in May, 1853, and came now before the court upon the following bill of exceptions.

Upon the trial of the issue, the counsel for the plaintiff, to maintain the issue on his part, called as a witness

F. P. Vidal, who, being sworn, testified as follows:—I am a City Surveyor; I surveyed south-east corner of West Broadway and Duane street (witness shown diagram); the area extends five feet five inches into West Broadway, twenty-four feet one inch and a half front on West Broadway; on Duane street the area is three feet nine inches to the walk; the area is covered with a grating to the stairs leading to the lower story; the stairs are four or five feet; the depth is eight feet three inches below the top of the sidewalk; the coping above the sidewalk is four inches. .

Sarah, Lozier, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:—I own the premises south-east corner of West Broadway and Duane street; have owned them several years; I know defendants; I had a building put on the premises last summer by Kent & Dougherty, the defendants ; they contracted to build it and finish it complete ; same buildings that are up now; same area and grat-. ings, contracted to finish and complete; the defendants-finished the building; it was delivered and finished; don’t recollect the time, it was about October.

I don’t remember any one’s calling to see me about the work; the masons and carpenters had charge of the building; I don’t know who was to furnish the iron w'ork; I paid no one for any work except Kent & Dougherty, the contractors.

Cross-examined.—Jasper Demarest is my son; he knows more about it; Mr. Cleary came into my room to inquire about the apartments the same evening, before the accident; my house is four houses off; he was in liquor when he came in to inquire about the rent; he wavered a little; I did not hear of the acci

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dent until morning; I" thought he was in liquor; I supposed he was in .liquor because he talked so unreasonably.

M. H. Howell, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:—I am a house-smith ; know defendants; did work on the building; the defendants employed me ; I furnished the grate over the area in front; it was last summer.

Cross-examined.—'There was no written contract; the work was well done; I sent the grating and men to put it in; I was to receive §400 for putting it down; I do not recollect the width (the diagram is shown witness); the opening was two feet six inches wide, three feet six inches long; that is the diagram the building was erected from.

John McDougal, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:—I am a tailor; reside in West Broadway; I know McCleary; I know the building; I was with him at the time he fell into the opening, 17th September, a quarter before eight, P. M.; McCleary and me were going up West Broadway, going towards Canal street; we noticed a bill on the corner; went to see who had the letting of the building on the corner; after looking at the bill he turned to go up West Broadway, and stepped into the area hole, where the grating now is; he stood nearer the hole than I did; the first step he took he fell into the hole; we left his store, in Church street, below Chambers street, the last place before we came here; I worked for McCleary ; I stopped in West Broadway, at James Robinson’s; he left the shop at half-past seven o’clock; I had been in his company about three quarters of an hour before leaving the shop ; I did not see him going into any house to inquire the rent; he was as sober as I am this, minute; I saw nó light or protection of any kind; I did not know the hole Avas there until I saw McCleary fall in, and break his leg, and otherwise inj ure his body; the depth of the hole Avas from nine to ten feet; I carried him to my own house, 47 Thomas street; he remained from Friday till Thursday; thence home to Centre street, above Centre Market; he was confined about four or five months; his business was repairing and scouring old clothes; I had been in his employ about one year; he went

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out, through hotels mostly, and about the city, collecting work; out most of the time ; always went on foot.

Cross-examined.—We drank a small glass of beer ; I worked before that at another place ; he attended to his business ; he took-a glass as well as another person; McCleary read the notice ; he mentioned who had the letting of the house; I can’t say who it was; it was somebody in Church street; he was in front of me when he fell in ; he did not go into a house 21 West Broadway.

Dr. Gordon, being called as a witness on behalf-of the plaintiff, and duly sworn, testified as follows:—I am a physician; know plaintiff; was called on the night of the 17th September, at McDougal’s;' I found him in bed ; I found the thigh bone fractured about one hand from the hip joint, he had some slight abrasure of the skin, shoulders bruised; I have attended him ever since that occurred ; I set the leg; he was confined to bed for three months; for about a month after he went on a crutch; I believe, at present, it is as well as it ever can be; a cripple for life is the result of such an accident; my bill is $109 to present date ; he had no appearance of being in liquor; I saw him before ten o’clock of that night. I have been paid $18 on account. •

Hugh Murray, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows :—I am a tailor; I have been in McCleary’s employ five years before September last, and afterwards I was employed by him, after the injury, to take charge of the shop; I received about $7 a week,-for about two months; the business was rather on the decline, because plaintiff could not go out to look for work; $11 to $15 a week received only while I was there after the accident; before the accident the average was $4 a day.

Oakley Bray, being called as a witness on -behalf of the plaintiff, and duly sworn, testified as follows:—I am a policeman, 3rd Ward, was so in September, another officer, Peter Ottington, and myself were going up West Broadway, we were on the opposite side, saw a crowd, ran over, found McCleary down the area way, assisted him out by a ladder. A man .put him on his back and carried him home,

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he complained about his leg and face, he did not walk. I should think he was sober. There was a saw bench in the area. . I had observed the .hole before that night; I saw no precaution. There was no board or light to guard against the injury.; the open space was three to four feet long, and about the same in width, and eight feet deep. The other policeman is dead. I do not recollect a gas-light on the corner.

Cross-examined.—I think from the actions and appearance of the man he was not in liquor.

Cornelius Durrees, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows :—I saw the hole open a day or two previous, in the afternoon I noticed the bill, and went up to look at it. In stepping away I was near stepping in. It was between three and four o’clock, P. H.

James Downing, being called as a witness on behalf of the plaintiff, and duly sworn, testified as follows:—I am a car-man ; the day of the accident, I saw defendant Kent at the building, I told Kent it. was a dangerous hole. Kent said; if a man can’t see that, he had ought to fall in. I did not see the man that was injured.

The counsel for defendants hereupon moved to dismiss the complaint in this action, on the ground, that inasmuch as it appeared from the evidence that the witness, Howell, subcontracted with defendants to furnish the grating or iron work, and did so furnish the said grating or iron work, the said Howell employing men under him to labor upon said work; that under the evidence, the said Howell, if any one, and not the defendants, should respond to the plaintiff in damages. The court denied the said motion of defendants’ counsel to dismiss the complaint, to which said decision of the court denying said motion the defendants’ counsel then and there duly excepted.

Patrick Corcoran, being called and sworn as a witness on behalf of the defendants, testified as follows :—I am a laborer; I am in the employ of Kent and Dougherty, since last September ; knew the building in question; I' remained there till the policeman got done; every night we put up guards of scaffolding boards. I was a laborer.

Barclay Cummings, being called and sworn as a witness on behalf of the defendants, testified as follows:—I was at

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work in the building spoken of until the mason work was done; the iron grating was being put up when we left; we put up guards every night about six o’clock; we left the blacksmith when we went away; the carpenters were also there. Kent and Dougherty, with all the men, went up town after they got through.

Upon • being cross-examined by the plaintiff’s counsel, the witness testified,-1 was not at the building at the time; did not see the hole.

J. Van Voorhies, being. called and sworn as a witness on behalf of the defendants, testified as follows:—I know- the building; saw the person that fell; it was in September; saw him coming along the fence in West Broadway; he stepped up to read a bill; I thought the man was in liquor before he fell; I was standing in my store door, across the street, 125 feet off; it was dusk, not dark; I went over and saw them take the man out; he hobbled away between two men; the width of the side walk was about eighteen feet; the height of the coping is about six inches.

John N. Lyon, being called and sworn as a witness on behalf of the defendants, testified as follows :—I have seen McCieary before. I was standing on the opposite corner. I did not think he was sober..

David Stevens, being called and sworn as a witness on behalf of the defendants, testified as follows:—I am a baker.. I know the building. I saw defendants while erecting the building. I lived across the way. I observed them putting on the plank every night while Kent and Dougherty were there; it covered the whole area. I recollect the grating was guarded some time.

Cross-examined.—I can’t swear as to the night before the accident.

Joseph Demarest, being called and sworn as a witness on behalf of the defendants, testified as follows:—I am the son of Mrs. Lozier. She • and I contracted for the work with Kent and Dougherty. They contracted with Vanlieu for the carpenters. I am not acquainted with plaintiff’s habits. I saw that building often. Defendants were there, off and on, while the grating work was being put up, after the

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mason work was finished. I saw the man putting up guards every night, down to the time of the accident. I have • put them up myself.

W. H. Howell, called hy the defendants:—Two or three hands were sent down to do the jobs. Don’t recollect their names. Was there occasionally. I was there in the middle of the day. The mason work was not finished. The hole was open while the men were at work.

The defendants hereupon rested, and the testimony was closed. The court thereupon proceeded to charge the jury. The counsel for the defendants requested the court to charge the jury that, under the evidence in this case, the defendants were not liable to respond to the plaintiff in damages. The court refused so to charge. To which decision, the counsél for the defendants thereupon then and there duly excepted. The jury thereupon retired, and soon afterwards came into court and rendered a verdict for the plaintiff for $400. Upon which a judgment in his favor was duly entered.

H. L. Clinton, for the defendants,

in moving for a reversal of the judgment, and a new trial, insisted that—

The court erred in not dismissing the plaintiff’s complaint. (Blake v. Ferris, 1 Selden, 48.)

It appeared from the evidence of Howell (plaintiff’s witness), that he subcontracted with defendants to do the iron-work or grating.

The erection of grating to protect the area was entirely under the control of Howell.

The accident to plaintiff occurred in consequence of his leaving the area unprotected by grating.

The principle adjudicated in Blake v. Ferris, and running through all the adjudged cases now recognised as authority, is that the party who has the selection of the men performing the work, through whose negligence damage is sustained, is alone responsible. (Pack v. Mayor, &c., of New York, recently decided in Court of Appeals.)

E. Sandford, for the plaintiff,

contended' that no error

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had been committed by the judge upon the trial,, and that the judgment ought to be affirmed with costs, and insisted that—•

The defendants were in the exclusive possession of the premises, under a contract to deliver the buildings finished and complete in every particular, when the injury was sustained by plaintiff. The building was delivered finished in October, and the injury happened on 17th September.

Howell, the blacksmith, was employed by defendants to put down the grating. There is no evidence that he had any charge or possession of the premises ; on the contrary, on the day of the accident defendant Kent was at the building, and his attention was called to the hole. He did not claim that he was not responsible for the condition of the premises.

If the accident was occasioned by the negligence of the blacksmith, he was the agent and servant of defendants, and they are responsible. (Blake v. Ferris, 1 Selden, 49, and cases there cited.)

It is a mistake to suppose that this case is at all governed by the decision of the Court of Appeals in jBlaJee v. Ferris. Had the action been brought against Mrs. Lozier, the owner, instead of the defendants, the objection that has been relied on, would have applied, and would have been fatal; but the defendants had contracted to finish the whole building, and while engaged in the performance of their contract, had the exclusive possession and control; and that their contract embraced the front area, and the work there necessary to be done, is not denied. Although they employed a blacksmith at a stipulated price to make and finish the grating, it does not appear that it was not their duty to guard against accidents during his absence and that of his workmen, by covering or fencing the opening to the area, until it was properly grated. Their contract with the owner imposed upon them this duty, and it does not appear that they were released from it by their contract with the blacksmith. On the contrary, the case shows that it was considered by themselves to be their duty, and that they attempted to prove its performance. Hence, it is to- the negligence of the defendants themselves and of the servants whom they employed, that the acci

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dent from which the plaintiff has suffered must be imputed, and there is consequently nothing to take the case from the general rule of respondeat superior.

Even had it been proved that the blacksmith, as a sub-contractor, was bound to guard and protect the opening in the area until the completion of his stipulated work, we are by no means prepared to say that the defendants would not still be responsible for his negligence, as' that of their own agent or servant. We are not aware that it has yet been decided that he who has contracted to erect and complete an entire building may relieve himself from all liability for the negligent acts or omissions of those by whom the labor may be performed, by parcelling out the work to sub-contractors in distinct jobs, instead of performing it by laborers under his own direction and in his immediate employ. As at present advised, we do not think that the principle of the decision in Blake v. Ferris would require us to go to this extent, and, unless under the pressure of a paramount authority, it is not a decision that we should be willing to make. It is not necessary, however, that the question should now be determined.

All the exceptions taken on the trial are overruled, and the judgment upon the verdict is affirmed with costs.