O'Rourke v. Hart — 20 N.Y. Super. Ct. 511

Majority

p. 511

Ellen O’Rourke, Plaintiff and Respondent v. Henry Hart, Defendant and Appellant.

Headnote

1. Where a person eniploys another to do a piece of work, and the one so employed does it by his own workmen, using his .own discretion as to the manner of doing it, having exclusive control of the matter, and a third person is injured while the work is in progress, by the careless manner in which it is done, the contractor and his servants guilty of the negligence are alone liable for the injury.

2. It makes no difference, in sucha case, that the work done consists in altering a public street. When the work to be done cannot itself be dangerous to others, unless it becomes so by the dangerous or unskillful manner of executing it, and is done by one contracting to do it, and having exclusive control of the men employed, and injury results from such unskillfulness, the remote principal is not liable. The liability is confined to the persons guilty of the negligence, and to their principal.

(Before Bosworth, Oh. J., and Woodruff and White, J. J.)

Heard November 16,

decided December 29, 1860.

Appeal by the defendant from the judgment, and from an order denying a motion for a new trial.

The suit is brought to recover damages for an injury to plaintiff, occurring at the corner of Chatham and Pearl streets, in the city of New York, and alleged to have been caused by the negligence of defendant’s servants in removing an iron railing suspended above the sidewalk to support an awning, by which negligence the iron railing fell on the plaintiff as she was passing along the street, and injured her. The action was tried before Mr. Justice Moncrief and a jury, on the 25th of June, 1860.

It appeared that the railing was taken down at ■ the instance of, and paid for by the Third Avenue Railroad Company, which had an alteration of the curb, at that corner of the street, made for its convenience in running its cars, and this alteration made it necessary to remove the iron awning posts and rails. The defendant was a director of that company, and in behalf of the company emploved one Carnley to do the job, who sent his workmen

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to do it. Hart was not present while the work was being done, and gave no directions as to the manner of doing it.

The injury of the plaintiff was not a natural or necessary result of removing the awning rail, but resulted from the negligent manner in which the work was done and while it was being done.

On the close of the evidence the defendant moved a dismissal of the complaint; the motion was denied, and he excepted. The judge charged the jury, among other things, as follows, viz:

“That if the Third Avenue Railroad Company were the persons who contracted with Carnley to do the work in question, and were liable to him, the defendant would not be liable to the plaintiff in this case; but if the defendant employed Carnley to do the work for him, he would be responsible for the injuries which might result from any negligence on the part of Carnley’s employees. Whether the railroad company or the defendant was the principal in the contract with Carnley, was a question of fact for. the jury to determine.”

To which the defendant excepted.

“His Honor further charged, that if the jury found that the defendant was such principal, the jury would proceed to inquire whether the agent or workmen employed by him and engaged in doing the work, used due and proper caution, and guarded against accident, to the extent of the danger to be apprehended from the character of the work, and the place a public thoroughfare; and in case the jury should find that such agents or workmen of the defendants were not so prudent and careful, but, on the contrary, were guilty of negligence and carelessness, the jury must then inquire whether the plaintiff, at the time of the accident, was guilty of such acts or conduct as of themselves contributed to produce the injury complained of. If the injuries were the result of the carelessness and negligence of both the plaintiff and the defendant’s workmen, it could not be said that the defendant’s act alone produced the injuries, and, the defendant would

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not be liable. To entitle the plaintiff to recover, her fault or negligence must not concur to produce the result complained of. If the jury should find that the work was the defendant’s, issued or proceeded from him as principal, and his agents or workmen were negligent, and the plaintiff without fault, the defendant would be liable, and the question of damages must next be considered. To which the defendant’s counsel excepted.”

The jury found for the plaintiff, and assessed the damages at $7 00. The defendant moved at special term for a new trial. The motion was denied; from the order denying it, and from the judgment entered on the verdict, the defendant appealed to the general term.

John N. Whiting, for Appellant.

William M Alim, for Respondent.

—There can be no pretence upon the evidence given, that Henry Hart had the iron awning rail removed on" his own account. It was not done to accommodate his individual business; but to facilitate the operations of the Third Avenue Railroad Company. And even had he caused it to be done with a view to the more convenient transaction of some business, of which he was the sole proprietor, he would not be liable.

The cases of Pack v. The Mayor, &c. of New York, (4 Seld. 222,) and Kelly v. The Mayor, &c., of New York, (1 Kern. 432,) are conclusive.

The injury did not result from the work itself; that is, it was not a natural or necessary consequence of the removing of the awning rail.

It resulted from the manner in which the work was done, and from the negligence of Carnley’s men while doing it.

Hart, whether on his own account or on account of the Third Avenue Railroad Company may not be very material, employed Carnley to remove this awning rail. This rail, we must assume, might lawfully be removed; with

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the manner of removing it, or with the question by which of Carnley’s men the removal should be effected, Hart could not interfere; Carnley having undertaken to do the job, had the right to send such of his men as he deemed best, and to exercise his own judgment, or permit his workmen to exercise theirs, as to the best mode of executing the work.

The men whom he sent, were his servants, and not Hart’s; they were working for, and under Carnley; and not for, or under Hart.

The opinion in Storrs v. The City of Utica (17 N. Y. R. 104) reaffirms the rule as applied in the two cases first cited; and while it forcibly questions the accuracy of its application, as made in Blake v. Ferris, (1 Seld. 48,) does so upon the ground, that there, the injury was not caused by negligence in the actual performance of the work; but by leaving a ditch carefully and skilfully dug in a public street, unguarded at night, by reason of which the plaintiff’s carriage'was driven into it.

In the case before us, if the injury had resulted from some dangerous condition in which the defendant had put the street; and that condition, and not the means by which it was created, had caused the injury; then it might be said that the defendant was the author of the mischief, as he created a condition of things, which, in the very state he had contracted for, caused the injury. But when the thing contracted for cannot of itself be dangerous or injurious to others, unless it becomes so by reason of the negligent or unskillful manner in which the work is done; and while it is being done, and injury results from such negligence or unskillfulness, only the persons chargable with the negligence or unskillfulness, and their principal are liable. (Potter v. Seymour, 4 Bosw. 140 .)

We have seen that the negligence in question was in the manner of doing the work, and while doing it; and that the persons guilty of it were the servants of Carnley, and not of Hart. ’ Hart was not present while the work was

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being done, nor did he give any directions, or in any way assent to the manner of doing it.

On the evidence given, and as it stood when both parties had rested, the defendant was entitled to a dismissal- of the complaint. It shows clearly, as we think, that the work was done solely at the instance of, and for the Third Avenue Railroad Company.

It was no more done for Hart, than it would have been done for the President or Secretary of the Company, if either of those officers had in behalf of that company done precisely what Hart did.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Ordered accordingly.

Cases cited

Potter v. Seymour 4 Bosw. 140 N.Y. Super. Ct. 1859-02-12 p. 514