Wolf v. . American Tract Society

O’Brien, J. The plaintiff’s action for damages resulting from personal injuries was dismissed at the trial, but the court *32 below on appeal reversed this judgment as to all the defendants other than the Tract Society, and these defendants have appealed to this court from the judgment of reversal. The facts established at the trial upon which the complaint was dismissed, briefly stated, were these: On the 25th of March, 1895, a large structural steel building, twenty-three stories in height, was in progress of construction by the American Tract Society near the corner of Nassau and Spruce streets in the city of New York. The society owned the building and had contracted for its erection with various contractors who agreed to do each a special part of the work. It was shown that there were nineteen independent contractors employing about two hundred and fifty men in all. These contracts were made directly with the Tract Society and bound the contractor in each case to do some particular part of the work, and in most, if not all of them, the contractor was bound to use due care and to indemnify the owner of the building against any loss resulting from injuries to others in the progress of the work. The proof tended to show that on the day named the plaintiff was in the service of one of the contractors for furnishing the steam fitting for the building, and was sent there with a load of pipe upon a truck. The truck was stopped on the Spruce street side of the building, which is a narrow .street. While the plaintiff was on the truck attending to his duties, and without any negligence on his part, a brick fell from the building, which had then reached the ninth story, and struck him upon the head, inflicting a very serious injury. There were then in the building, it seems, not only masons and carpenters engaged in the work, but steam fitters and plumbers putting in pipes in recesses in the walls, elevator men, electric light people and various workers doing work around the building. There was no proof whatever to show from what part of the building the brick came, or who dropped it or set it in motion. There was no proof to identify the person in or about the building as the immediate author of the wrong. Of all the numerous persons engaged in or about the work the *33 jury could not have imputed the accident to any one of them more than another. In this state of the proof the trial judge dismissed the complaint. The learned Appellate Division sustained the trial judge so far as affected the Tract Society, the owner of the building; but since it appeared that the defendant Downey had charge of the carpenter work, and the defendants, the two Webers, had charge of the mason work, and that neither of them had shown conclusively that the brick was not set in motion by the act of some of their workmen, it was held that there was a case for the jury to find that some one of them, or all of them together, were chargeable with negligence and so responsible to the plaintiff for the injury. We agree with the court below that this is a case where the maxim res ipsa loquitur applies. There is a presumption that the plaintiff’s injury was the result of negligence. (Mullen v. St. John, 57 N. Y. 567; Hogan v. Manhattan R. Co., 149 N. Y. 23; Kearney v. London, etc., Ry. Co., L. R. [5 Q. B.] 411; Volkmar v. Manhattan R. Co., 134 N. Y. 418.) But that presumption did not complete the proof which it was incumbent upon the plaintiff to make before the case could be submitted to the jury. In a case like this, where the building in process of construction is in charge of numerous contractors and their workmen, each independent of the other, and none of them subject to the control or direction of the other, some proof must be given to enable the jury to point out or identify the author of the wrong. There is no principle that I am aware of that would make all of the contractors, or all the workmen engaged in erecting this building, liable in solido. And yet there is just as much reason for that as there is for holding two of these contractors for no other reason than that one of them had charge of the carpenter work and the other of the mason work. The plaintiff, we must assume, suffered injury from the negligence of some one; but I am not aware of any ground, in reason or law, for imputing the wrong to the two contractors who are defendants, or for selecting them from all the others as responsible to the plaintiff, unless they can conclusively show that they *34 are not. When there is no proof where the brick came from, except that it came from the building, and nothing to identify the person who set it in motion, it cannot be said that the plaintiff has made out a case for the jury. The presumption does not go far enough, since the party chargeable with the act from which the injury resulted has not been identified, but that important fact is left entirely to con jecture. There is no principle of law that will permit the plaintiff to proceed upon the theory that any one in any way connected with the work, or any one or more of them that he chooses to select, must respond to him in damages for the injury. If the plaintiff was unable to give proof pointing to the party responsible for the injury, that is no reason why the innocent and the guilty should be held in a body upon a presumption that some or all were negligent. Each of the nineteen contractors was responsible only for the negligence of his own servants or employees. He was not responsible for the negligence of the servants of the other contractors. The men employed in and about the building in the aggregate were the servants of nineteen different masters. As the person who caused the in jury was not identified by the proof, it was of course impossible to identify the master responsible for his act. It follows that either the plaintiff’s action must fail for want of proof, or we must hold, as the .court below did, that any or all the contractors together may be held responsible for the injury. I am quite sure that such a proposition cannot be defended upon principle, and I am not aware of any authority that can possibly lend any su'pport to it. Oases must occasionally happen .where the person really responsible for a personal injury cannot be identified or pointed out by proof, as in this case, and then it is far better and more consistent with reason and law that the injury should go without redress than that innocent persons should be held responsible upon some strained construction of the law developed for the occasion. The idea suggested in this case, that all or any of the nineteen contractors may be held *35 since the plaintiff is unable by proof to identify the real author of the wrong, is born of necessity, but embodies a principle so far-reaching and dangerous that it cannot receive the sanction of the eourts. The liability of the owner to the plaintiff upon the facts presented by the record in this case is not a practical question upon this appeal, since the plaintiff has not appealed from that part of the order of the court below which discharged the Tract Society from liability absolutely, and the plaintiff cannot maintain this action upon the promise or covenant of the contractors with the owner for the reason that he was not a party to that contract and it was not made for his benefit. (Reynolds v. Van Beuren, 155 N. Y. 120.) The sole question now before us is whether there was any case made out against the two contractors who were originally joined as defendants with the owner of the building, and we are of opinion that there was not. The order appealed from should be reversed as to them, and. that of the trial court affirmed, with costs.