Fox v. Park

Ward, J.: The questions upon this appeal arise upon exceptions- to the charge of the trial court- and upon the reception of certain evidence given by expert witnesses introduced by the plaintiff. The learned ■trial judge, in his charge to the. jury., after" ref erring to the. evidence as to the construction of the building and of the accident, and other evidence,, said ■: The defendant constructed the grand stand by its employee, the contractor, and if it was ■ improperly constructed so that it was a dangerous structure, the defendant was responsible for its condition. I do not think it was' necessary .to have called .the attention, directly", of the superintendent or the directors (of the ■defendant), or whoever had the management of the concern to call their attention directly to the defects,'it having itself erected the ■structure by letting the. contract to this contractor.”’ . After referring to the fact that the stand, had before-been used for large crowds of .people without accident, the judge continues.: “ Gentlemen* if you come to the conclusion that, this Was a fairly reasonably' Well-constructed structure, and ■ that, by’ some unusual strain, that - nobody had any thought it would be subjected. to, it -.was broken down' on this occasion, then the plaintiff is not entitled ;to recover against the defendant, but if-you come to the; conclusion — 325 — that it was improperly constructed; that it was defective so that it was dangerous to be used for these purposes, then I think the plaintiff has made out a cause of action against the defendant, and the only remaining question'will be, if you come to that conclusion, the amount of damages plaintiff is entitled to recover.” The defendant’s counsel excepted to that portion of the charge that if the jury should find that the building was improperly constructed, so that it was in a dangerous condition, the defendant was responsible, and he also excepted to that portion of the charge that stated that it was not necessary, if the building was defectively constructed, that notice of the defect should be brought to the defendant or its officers. To which the court said : “ Any other way éxcept from the fact of its construction ? By defendant’s counsel: You place the liability on the original construction ? The court: Yes, sir.” ■ The defendant’s counsel then requested the court to charge that knowledge could not be imputed to the defendant by this original construction, simply because it was the owner of the building, if it had not actual knowledge." This was declined and the defendant excepted. The position of the appellant is that its responsibility is to be. measured by the rules governing cases of negligence, and that it cannot be made liable except it be shown that the officers of the corporation knew, or should have known, that the grand stand was improperly constructed and was dangerous. The respondent’s position, is that the structure as created was a nuisance; that the rules governing actions of negligence do not apply, but if this action be regarded as one of negligence no notice was necessary to the defendant’s officers of the dangerous condition of the structure, as the defendant itself had created the structure. - In Heeg v. Licht (80 N. Y. 579, 582, et seq.) the Court of Appeals points out a number of instances of nuisances, and at page 579 defines a jnivate nuisance to be “ anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. (3 Bl. Com. 216.) Any unwarrantable, unreasonable or unlawful" use by a person of his own property, real or personal, to the injury of another, comes within the definition stated and renders the owner or possessor liable for all damages arising from such use.” — 326 — Swords v. Edgar (59 N. Y. 28) is much like the case at bar in principle The defendants were the owners of the sotith half of pier'BTo. 11 in the city of Hew York. On the 9th of July, 1866, the plaintiff’s intestate, who was a longshoreman, was assisting in discharging á cargo of iron from a steamer 'upon the south side of this pier; it fell and he received injuries causing his death. The pier at the. time was in the possession of á steamship company under a lease from the defendants, the exclusive possession and control at the time of the accident of the pier being in the lessee. The negligence charged was that at the time of the lease the timbers of the pier had become rotten and unfit fór use, so that the pier was in an unsafe and dangerous condition, while the flooring was apparently sound; also., that there was a defect in the original construction of-the pier. It was held that,'as the pier was in a defective and unsafe condition at the time of the leasing, the defendant, who was receiving benefit by way of rent from the lessee, was liable for the consequences to the deceased, and Folger, J., says, at page 36: “It is plain from what we have before said, that there was once a duty upon the defendants as owners of the pier to maintain it in a safe condition. They did not do this. They leased it in an unsafe state1 and took a rent for the use of it. Thereby they became liable to any one lawfully upon it who suffered damage in consequence of its state of insecurity. • The pier was Unsafe on and before the day of the lease. The defendants were certainly at that time charged with the duty of putting and keeping it in a safe condition.” Again, the learned judge says, at page 35 : “A lessor of premises not per se a nuisance, but which become so only by the manner in which they are used by the lessee, is not liable therefor. (Rich v. Basterfield, 4 Man. Gr. & Scott, 783.) But that rule- may not apply1 here; a pier so defective and insecure when it is leased as that a subsequent injury received in the proper use of it as if sound is consequent upon its original condition, is for the purposes of such an action as this, per se a nuisance.” In Jarvis v. Baxter (52 N. Y. Super. Ct. 109) it was held that a1 building being constructed in an improper and unsafe manner with inferior materials so that a portion-of its walls fell upon another building and caused damage, was a nuisance. A house cut up into small apartments, inhabited by a crowd of — 327 — people in a filthy condition, was held in Meeker v. Van Rensselaer (15 Wend. 396) to be a nuisance. , Regarding the structure as a nuisance, the authorities all agree that the person or coloration who creates the nuisance is responsible for the damages that result from it. (Swords v. Edgar, supra; Ahern v. Steele, 115 N. Y. 209; Sexton v. Zett, 44 id. 430; Clifford v. Dam, 81 id. 52; Vaughan v. Buffalo, R. & P. R. Co., 72 Hun, 471; Wood Nuis. 442, § 41.) The trial court submitted to the jury the question whether the grand stand had been improperly constructed and was dangerous, and it was only in the event they so found that the court charged that the defendant was liable. The inference from the verdict is that the jury found that the structure was created unsafe and dangerous by the defendant itself. But it is perhaps unnecessary to go to the extent of holding that the grand stand was a nuisance, so far as the disposition of this case is concerned, as another principle intervenes which would seem to establish the liability of the defendant. While it is undoubtedly true in ordinary cases in the leasing of buildings that there is no implied warranty on the part of the lessor that the buildings are fit and safe for the purposes for which they are leased, the rule is different in regard to buildings and structures in which public exhibitions and entertainments are designed to be given and for admissions to which the lessors directly or indirectly receive compensation. In such cases the lessors or owners of the buildings or structures hold out to the public that the structures are reasonably safe for the purposes for which they are let or used and impliedly undertake that due care has been exercised in the erection of the buildings. . (Francis v. Cockrell, L. R. [5 Q. B.] 501; Swords v. Edgar, supra; Camp v. Wood, 76 N. Y. 92; Beck v. Carter, 68 id. 283; Grote v. C., etc., H. R. Co., 2 Exch. 251; Campbell v. Portland Sugar Co., 62 Maine, 552; Wendell v. Baxter, 12 Gray, 494.) The head note in Francis v. Cockrell (supra) is as .follows : “ A man who causes a building to be erected for viewing a public exhibition, and admits persons on payment of money to a seat in the building, impliedly undertakes that due care has been exercised in the erection, and that the building is reasonably fit for the purpose, — 328 — and it is immaterial whether the money is to be. appropriated to Ms own use or not." Chief Baron Kelly, in deciding that case, says: “There is the principle which I-hold to be well established by all the authorities, that one who lets for hire or engages for the supply of any article or thing, whether it be a carriage to be ridden in or a bridge to be passed over, or a stand from which to view a steeplechase, or a place to be sat in by anybody who is to witness a spectacle for a pecuniary consideration, does warrant and does i/mpliedly contract that the article or thing is reasonably fit for the purpose to which it is to be applied.” Baron Martin, in the same, case, says: “ I do not at all pretend to say whether the relation of the parties raised a contract or a duty. It seems to me exactly the same thing; but I am of opinion that-■when a man has erected a stand of this kind for profit, that he contracts impliedly With each individual who enters there and pays money to him for the entrance to it, that it is reasonably fit and proper for the purpose, or, if you choose to put' it in another form, that it is a duty of .a person who so holds out a building of this sort to have it in.a fit and proper state for the safe reception of the persons who are admitted.” - In Camp v. Wood (supra) the defendant had let a hall for a dance, to which- all who applied were admitted upon payment of the entrance fee. Plaintiff, who paid the, fee, went out of a door that had-been improperly left open, upon an awning and was injured. Judge Andrews says : “ In this case the defendant, by letting the hall for public purposes, held out to the public that the hall -Was safe, and he was bound to exercise care to provide safe arrangements for the entrance and departure of people who came there upon his invitation.” The principle thus asserted and sustained is a correct one and is founded in' a wise public policy., Structures that are reared for public exhibitions, such as the one in question, are erected for the purpose of accommodating great numbers of people at times and under conditions often of excitement when the numbers, activity and demonstrations of the people may subject the structure to ,-great weight and strain, and'these conditions must be regarded as within the contemplation of the builders of the structures when they were — 329 — created. These builders must be held responsible for the highest degree of care in constructing such concerns, and where it is clearly established by the evidence, as in the case at bar, that the structure was unsafe for the purpose for which it was created and dangerous; the inference is irresistible of the want of such care on the part of such builders, and it was not error in the trial court to charge the jury, under the circumstances of this case, that if they found that the grand stand when built was unsafe and dangerous, the defendant was liable. . But the appellant’s counsel contends that, inasmuch as the grand stand at the time of the accident was.in the possession of the lessee (the Press Cycling Club) that it was that party, if any, that held out to the public the assurance of safety, and that it was not this defendant. This contention cannot prevail. It was the defendant’s stand created by it; for years it had used it for public exhibitions of this character. The defendant participated in the profits of the. undertaking with the Press Club on the single day that it had been rented to the Press Club for a rental receivedby the defendant of $200. It was thus a party to the wrong of holding out an invitation to the public to come upon this dangerous and unsafe structure, and cannot escape liability. . As we ha ve seen in the Qookrell case, the court held that it was immaterial whether the person causing a building of this character to be erected with a view of public exhibitions, appropriated the money received from such exhibitions to his own use or not; and, as we have also seen, Judge Folgeb, in the Swords case, connects the liability of the defendants with the accident under which the pdaim tiff’s intestate was. killed in part by their receiving rent from the lessee for the use of the pier. But assuming that the case at bar may be regarded as one of negligence, how is the situation changed ? The defect in the grand stand was one of original construction. The defendant itself cre: ates an unsafe and dangerous structure. It was its duty to know that that structure was safe, or at least to exercise the highest degree of caré to that end. It has not performed that duty. Can it be defended by saying that its officers and agents may not have known as a matter of fact that the structure was unsafe and dangerous ? — 330 — It. is absurd to claim that the plaintiff in this action must show notice or knowledge of the wrongdoing to the very party that has committed the.' wrong; therefore, the doctrine of notice, or of knowledge, for which the learned counsel for the appellant contends, has no application to' this case, whether we regard the structure as á nuisance or otherwise. If the plaintiff had brought an actioh against the Press Cycling Club, it would have been incumbent upon the plaintiff to have shown that, as the lessee of the defendant, it had notice of the defective condition of the stand, or should, with, reasonable care, have known of its condition; or, if the action against this defendant had been based upon the ground that the dangerous condition of the grand stand liad grown out of causes which had intervened, as by decay or otherwise, since the creation of the structure, then, under some of the cases, knowledge of such causes, or want of reasonable care to have ascertained the.condition of the structure on the part of the defendant, should have been shown. But neither of these situations obtained in this case, and we are here confronted with the naked proposition whether the creator of a cause- of mischief must be shown to have known the nature of the act which he was committing, independent of the presumption that a man who is engaged in the wrongful or improper act knows what he is about and the probable consequences-of such acts. The learned counsel for the appellant relies upon the cases of Edwards v. The New York & H. R. R. Co. (98 N. Y. 245) and Timlin v. S. O. Co. (126 N. Y. 514). FTeither of these cases assists-the defendant, nor is pertinent here. In the Edwards case the defendant was' the lessee of a building designed for public entertainment, and there was absence of evidence tending to show that the defendant - knew, or. had reason to know, the defect in the gallery which fell upon the plaintiff and injured him. In the Ti/mlin case the judgment was reversed as against certain individual defendants who were lessees of the premises. In neither of these cases was the action brought against a party charged with, the defects in the original construction of the structure causing the injury; and the remarks of the learned judges in ' those cases must be regarded as applying to the cases which they were passing upon and considering. . — 331 — The appellant’s counsel intimates that the Swords case was in a measure overruled by these two cases, and states that that case was decided by a divided court. It is a curious fact in the history of the decision of these important questions that the Swords case, the Ed/wards case, upon which the counsel relies, and the Ahern case (supra) were all decided by four judges as against the dissent of the other three. But in the Edwards and Timlin cases there is no attempt to overrule or question the doctrine laid down in the Swords case, but, rather, that case is approved upon the ground upon which it was decided and properly distinguished 'from the questions arising in the other two cases. The views here expressed do not conflict with the proposition advanced in railroad cases, that the defendant may be exonerated even as against injury to its passengers upon showing that it exercised the highest degree of care with reference to the roadbed, rolling stock or machinery which caused the injury. The charge of the trial judge is to be considered in connection with the case and evidence before him. As we have seen, there was no attempt on the part of the defendant in this case to show any degree of care in the creation of the grand stand, beyond the simple fact that it hired an architect, who was competent, and intrusted the work to a builder, whose competency was not established. So that the question as to whether the defendant' exercised a proper degree of care in this case was not before the trial court. A state of facts was proved, however, that justified the jury in reaching the conclusion that the structure was dangerous and was caréles’sly and improperly constructed, and when that view was reached the defendant’s liability was fixed. The other question arising upon this appeal results from exceptions taken to expert testimony introduced by the plaintiff. ' A builder who had testified to the weakness of the joists as affected by the notching thereof, was asked whether such notching, in the judgment of the witness, rendered the joists unsafe; in other words, whether they were strong enough to bear the strain that would be put upon them. A question was . addressed to another witness as to whether the floor of the structure,, at it was constructed, was of sufficient strength to withstand a crowd using it for the purpose for which it was — 332 — intended. The witness- was ef the opinion that it was not. This evidence' was received ■ upon the theory that the jury, not being builders and acquainted with the: -conditions' necessary to secure ■ strength and' security to a structure of this character, Could be enlightened by .the judgment and experience of men who were ■familiar with sucli structures,, and with liqw strength- and .proportion should be adjusted in -the- things that combine to make up the structure in ¡order to secure safety, This situation presents a very different case from those cited by the learned counsel for the defend?■ant. (Harley v. B. C. M. Co., 142 N. Y. 31, 38; Schneider v. R. R. Co., 133 id. 583, 589.) In the first case a witness was asked his opinion, as to the saféty of a belt fastener, a - plain' contrivance that the jury could understand, and about which they could easily form a judgment from á description of .the article. • In the second case it was properly held that the mode of inspection and , examination of the running gear of a car by one ¡witness could not be shown to be improper by the opinion of another witness that it was so.. ' • . . . It is no longer a .valid objection to the expression of an opinion by a witness that it is upon the precise question wdiich the jury is' to determine. (Van Wycklen v. City of Brooklyn, 118 N. Y. 429; Transportation Line v. Hope, 95 U. S. 297.) • The cases of Scattergood v. Wood (79 N. Y. 263); Baird v. Daly (68 id. 547), and Moore v. Westervelt (27 id. 234) sustain the admissibility of the: evidence objected to in this case. , The. precise question-we are considering here was decided in the case of Prendible v. Connecticut River Manufacturing Company by the Supreme Court of Massachusetts (160 Mass. 131; 35 N. E. Rep. 675), where it was held that a- person who 'has -made a special study of the strength of materials^ and the.proper mode of. building structures to sustain weight, is competent to give his opinion as to whether a staging erected in a specified way can safely "be trusted tó carry particular loads. These views -lead to the conclusion that the judgmént and order appealed from should be affirmed. All concurred, except Adams, J., dissenting, and Follett, J., not sitting.