Haefeli v. Woodrich Engineering Co.

Kellogg, J. Edward Haefeli and Arnold McDonald, partners in the scavenger business, contracted to clean a cesspool maintained by the Woodrich Engineering Co., Inc. While Haefeli was stationed in the cesspool shoveling the sludge into pails, the arched top of the cesspool *445 fell in, causing his death. This action was thereafter brought, by the administratrix of the estate of Edward Haefeli, to recover damages for his death, against the Woodrich Engineering Company and its president, Philip H. Dein. The complaint charged these defendants with negligence in the construction and maintenance of the cesspool. A verdict for a substantial sum was recovered against both defendants. On an appeal to the Appellate Division, that court handed down a memorandum of decision reversing the judgment entered upon the verdict “ upon the law and the facts,” and granted a new trial. The memorandum stated: “ We are of opinion that the charge, in its entirety, failed to state adequately the duty of the defendants with respect to the maintenance of the cesspool and the duty of the decedent in using it.” (229 App. Div. 742). Subsequently, the order of reversal was resettled to read that the judgment was “ reversed upon the law, and a new trial granted,” and judgment was entered accordingly. (229 App. Div. 749). There is no rule of the common law, and in this State no statutory command, requiring a trial judge to give instructions to a jury in a civil case in respect to every legal proposition which may be pertinent to the issues. (Jones v. State of Ohio, 20 Ohio, 34; State v. Straw, 33 Me. 554; Kent v. Tyson, 20 N. H. 121; Hall v. Weir, 1 Allen, 261; Davis v. Elliott, 81 Mass. 90; Bain v. Doran, 54 Penn. St. 124; Pennock v. Dialogue, 2 Peters [U. S.], 1; Parsons v. Brown, 15 Barb. 590.) “ In general, then, while misdirection is error, non-direction is not.” (Thompson on Trials, vol. 2, § 2346.) The English courts hold that “ non-direction is only a ground for granting a new . trial where it produces a verdict against the. evidence.” (Great Western Railway Co. v. Fawcett, 8 Law Times Rep. 31.) Doubtless an appellate division, for lack of a charge or its insufficiency, upon an appeal from an order denying a new trial, deeming that a fair trial has not been had, *446 may in its discretion reverse and order the case retried. (McKellar v. American Synthetic Dyes, 229 N. Y. 106; Muldoon v. Dock Contractor Co., 199 App. Div. 733; Haas v. King, 216 App. Div. 821.) However, no error of law is involved unless the trial judge, upon a specific request, has declined to give appropriate instructions. Consequently, the reversal here, expressed to be “ upon the law,” may not be sustained, unless for error (1) in denying a motion to dismiss, (2) in receiving incompetent or rejecting competent evidence, or (3) in delivering incorrect instructions or refusing to charge correctly. The cesspool, through the collapse of which Haefeli met his death, -was circular in form with an arched top. Its greatest diameter was eight feet; its depth was fifteen feet. It was walled up with round or oblong stones, without cement, for a height of seven feet. From this point upward the walls of the structure were made to taper in to form an arch or dome. Round or oblong stones were employed to make the arch, as they had been to form the walls below. At the center of the arch an opening or manhole two feet square was made to appear. Over the manhole a flagstone was placed; over the arch and flagstone, after the structure had been completed, dirt to the depth of three feet, a mass totaling ten tons in weight, was piled. Several witnesses testified that the stone, taken from the cesspool after the cave in, showed no signs that concrete had been applied when they were laid in the arch. Others saw traces of cement upon some of the stone. A witness who superintended the construction of the cesspool on behalf of the Woodrich Engineering Co., Inc., said that concrete had been applied. What the quantities were; what proportion of cement the mixture contained; how the mixture was applied — to these questions the record supplies no answer. It has been said that “ Buildings, properly constructed do not fall without adequate cause^’ (Mullen v. St. John, 57 N. Y. 567, 569); that a " falling wall is evidence that there *447 was negligence on the part of some one ” (Hooey v. Airport Construction Co., 253 N. Y. 486, 489). In the absence of earthquake, storm, tempest or external violence of any kind (Mullen v. St. John, supra), the arch of the cesspool must have fallen because it was defectively constructed to bear the load which was placed upon it. It is undisputed that the semi-solids contained in a leeching cesspool must frequently be removed; that cleaners must frequently descend into the cesspool to shovel the sludge into pails that it may be removed. The constructor of the cesspool must reasonably anticipate that these things will be done and must reasonably provide for the safety of those who do them. It is said that the constructor, in this instance, could not reasonably have anticipated that the cesspool would be entered by means of a ladder, -as Haefeli entered it; and, therefore, was not required to make the cesspool safe for such an entry. This suggestion is based upon the testimony of a single witness who said that the usual method of entry was by means of a rope held by men standing at the brink of the manhole rather than by a ladder. The sole reason which the witness gave for this practice was the avoidance of a danger that the foot of an inserted ladder might strike the uncemented stones of the vertical walls and cause them to be dislodged. In our case it is undisputed that the ladder which Haefeli descended was inserted and held in a position almost vertical. Consequently, the peril to which the witness made allusion was in this instance avoided. No testimony was given to indicate that the weight of a man, descending upon a ladder held in a position almost vertical, will create a thrust against the side of the manhole, causing a greater strain upon the arch than the vertical thrust, which would be caused by the weight of several men standing at the edge of the opening to lower a cleaner upon a rope. Moreover, in opposition to the testimony thus given, the city inspector, by whom permits for the *448 cleaning of cesspools were given, stated that while the department did not advocate the use of a ladder “ we do not say they must not use it, - but it is up to their own volition.” We think that the jury may reasonably have inferred that the cesspool was not designed or constructed to bear a load upon it which might reasonably have been anticipated; that there was negligence involved in its design or construction. All non-trespassing visitors upon the lands of another, for the purpose of determining the relative duties of the occupant towards them, are classified either as “ Gratuitous Licensees ” or “ Business Visitors.” (Restatement of the Law of Torts, American Law Institute, §§ 201, 202.) The business visitor is one who comes upon the land, at the- instance of the occupant, for purposes “ directly or indirectly connected with any purpose, business or otherwise, for which the possessor uses the land.” (Id. § 202.) Haefeli and McDonald, invited by the Woodrich Engineering Co., Inc., the possessor of the cesspool, to enter and clean it-for a price, were clearly there upon the business of the occupant, and were, therefore, business visitors. A business visitor “ is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or. ought to know.” (Indermaur v. Dames, 14 Law Times Rep. 484.) “ The owners in such a case are bound to see that the premises are reasonably safe, and if they are- not safe, and the owners could know of the dangerous condition and negligently did not know of it, they are liable for damages caused.” (Sutcliffe v. Clients Investment Co., [1924] 2 K. B. 746.) An occupant of land owes to the servants of an independent contractor, employed to do work thereon, the duty of exercising ordinary care to render the premises reasonably safe for the performance of the work. (Sommer v. Public Service Corp., 79 N. J. L. 349; Richards v. Consolidated Lighting Co., 90 Vt. 552; Spry Lumber Co. v. Duggan, 182 Ill. 218; Crimmins *449 v. Booth, 202 Mass. 17; Pauckner v. Wakem, 231 Ill. 276; Hupfer v. National Distilling Co., 114 Wis. 279; Galvin v. Mayor, etc., of New York, 112 N. Y. 223; Quinn v. Staten Island R. T. Ry. Co., 224 N. Y. 493.) If such a duty is owed to the employees of an independent contractor, all the more is it owing to the contractor himself, for the latter has contractual relations directly with the occupant while the former have none. The restatement sums up the matter by saying that an occupant is hable for bodily harm caused to business visitors if “ he knows, or by the exercise of reasonable care could discover ” the dangerous condition of his premises, and fails “ to make the condition reasonably safe, or to warn them of the condition and the risk involved therein.” (§ 213.) The cesspool was constructed by a man named Lebette for a lump sum price. The Woodrich Engineering Co., Inc., was to furnish all the material, and did in fact supply the round or oblong stone, and all the cement which was used. Walter H. Dein, a brother of the company president, Philip H. Dein, was in charge, for the company, of all cesspool construction work; he was the “ superintendent ” of the work; he “ supervised ” the construction of the cesspool. Walter Dein testified that no written plans were made for the cesspool; that the “ job was to be done in such a manner as was agreed upon ” between himself and Lebette. Philip Dein testified concerning his brother that “ he watched the construction and saw that it was built up according to the way cesspool construction is done.” It cannot be denied that Walter H. Dein, the alter ego of the Woodrich Engineering Co., knew and approved of the plan of construction; knew and approved of the use of round stone; parceled out the cement and knew the amount of concrete mixture employed and the quantities used. Assuming, as we must, that the structure was improperly built to withstand a load reasonably to have been antici *450 pated, Walter Dein, and, therefore, the defendant company, ought to have known that the cesspool was in a dangerous condition. Therefore, within the principles which have been stated, the defendant Woodrich Company, in inviting Haefeli and McDonald to work upon the cesspool, without giving warning of its dangers or remedying its defects, was guilty of negligence. It has been held that the owner of a building in the course of construction, who has intrusted the planning of the building to a competent architect, and its erection to a competent contractor, is not liable for harm done to persons lawfully in the building, through its collapse because of faulty design or faulty construction. (Burke v. Ireland, 166 N. Y. 305; Herman v. City of Buffalo, 214 N. Y. 316.) These cases were decided upon the assumption that the owner took no part in supervising the construction; that he had no knowledge that the structure was inherently dangerous. Where these facts appear, the rule is otherwise. (Hooey v. Airport Construction Co., 253 N. Y. 486; Caspersen v. La Sala Bros., 253 N. Y. 491.) True, an owner, who contracts for the erection of a building, may not be hable, on the principle of respondeat superior, for the acts or omissions of the contractor or his servants, or for those of the architect. He is hable, however, as we have seen, where, after the construction work is completed, having full knowledge that the structure is dangerous, or reasonable grounds to believe that it is defective, he invites others to perform work within the structure, and neither warns them of the danger involved, nor takes reasonable steps to avert the peril. We find, therefore, that the trial court was not in error in refusing to dismiss the action as against the defendant Woodrich Engineering Co., Inc. We find no error in the reception or rejection of evidence. The defendants complain that the court charged the jury as follows: “ As I say, Haefeli had a right to assume that *451 everything was O. K. in that cesspool when he started down.” We think the charge is correct. A business visitor “ is entitled to expect that the possessor will take reasonable care to discover the actual condition of the property and either make it safe or warn him of its dangerous condition.” (Restatement of the Law of Torts, § 213.) They complain of the charge: “ I do not feel, gentlemen, under the evidence here, that it is a question of an independent contractor.” Even if we assume that Lebette, who constructed the cesspool, was an independent contractor, which is doubtful, nevertheless, for the reasons given, we do not think that the possessor was thereby relieved from liability. The charge does not otherwise appear to be erroneous. We think, therefore, that as against the defendant Woodrich Engineering Co., Inc., the judgment of the trial court should be reinstated. It has been said: “ But the agent or servant is himself liable as well as the master, where the act producing the injury, although committed in the master’s business, is a direct trespass by the servant upon the person or property of another, or where he directs the tortious act.” (Murray v. Usher, 117 N. Y. 542, 547.) There is no proof in the case that Philip H. Dein, the codefendant of the Woodrich Engineering Co., Inc., designed the cesspool in question; determined its method of construction; gave orders as to the quantity or nature of the concrete mixture to be used; directed the commission of any tortious act; knew or had reason to know of any defect in plan or in construction. All these matters were committed to the judgment and supervision of Walter H. Dein, who was the superintendent in charge. We do not think, therefore, that a recovery against Philip H. Dein was permissible. The order of the Appellate Division, as to the defendant Woodrich Engineering Co., Inc., should be reversed, and the judgment of the Trial Term affirmed, with costs *452 in the Appellate Division and in this court; the order of the Appellate Division, as to the defendant Philip H. Dein, should be affirmed and judgment absolute be ordered against the appellant upon the stipulation, with costs in all courts.