Leeds v. New York Telephone Co.

Sewell, J.: At the opening of the trial the defendant moved to dismiss the complaint on the pleadings. The learned trial court granted the motion, and the question we are called upon to determine is whether a valid cause of action is alleged or can be fairly gathered from all the averments contained in the complaint. The rule that justifies the dismissal of a complaint for want of sufficient facts stated was laid down in Marie v. Garrison (83 N. Y. 14, 23), where the court said: “ A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein, by reasonable and fair intendment, and facts impliedly [486] averred ■ are traversable in the same manner as; though directly averred.” In Oldfield v. N. Y. & Harlem R. R. Co. (14 N. Y. 310) it was held that a general averment of negligence- was sufficient to admit evidence of particular acts. In that case the complaint averred that death was caused by the negligence- and fault of the defendants and their agents and employees, and! the court' said: “ This authorized evidence of the defendants’ neglect or misconduct tending to produce the injury, without a more particular • statement in the pleading.” ■ • In Edgerton v. N. Y. & Harlem R. R. Co. (39 N. Y. 227) the complaint contained a general averment that the injury was received from the negligence, of the defendant and defendant’s employees, and the court held that it was immaterial whether the proof established the particular negligence- specified' in the complaint, some negligence being shown. The complaint in this case alleges that the defendant “negligently. ran, constructed, used and maintained said wire across said street above the surface thereof, and unlawfully- and contrary to section 5 of chapter 499 of the Laws of 1885, requiring all telephonic wires erected and maintained in any incorporated city of this State having a jDopulation of five hundred thousand or over, and carried -along or across and. above the surface of any street of such city, to be so erected and maintained as not to incommode the other public uses of such street, which statute was in full force and effect at the times herein referred to and at the times defendant so rati, constructed-, used and maintained said telephonic wire and has- continued to" be and is still in full force and effect, and then applied, and has since continued to apply,-to the City of New York, which then was and has since continued to be an incorporated, city of this State, having a population of over five hundred thousand. “ That defendant, at the time of running and constructing said telephonic, wire across said street and above the surface thereof, passed said wire around the old brick chimney, which arose above the roof- from the southerly wall of the brick building situated on the northeast corner of Fourth Avenue and Nineteenth Street, in said city and county of New York, and which formed,, with said southerly wall, a vertical line or surface arising for about forty feet [487] from the northerly side of the sidewalk on the northerly side of said Nineteenth Street, and thereafter and on the 22d day of November, 1899, defendant so maintained said telephonic wire. “ That the passing and the maintaining of said wire around said chimney as aforesaid constituted negligence on the part of defendant, in that it rendered said chimney likely to break and to fall to the sidewalk beneath. “ That by reason of the unlawful and negligent manner in which defendant ran and maintained said wire across said street and above the surface thereof as aforesaid, and' by reason of the negligent manner in which defendant secured and. maintained said wire by passing it around said brick chimney as aforesaid, there was created a situation of great danger,.imperilling the lives of people lawfully passing along the sidewalk on the northerly side of said Nineteenth Street at the point above which said chimney with said telephonic wire passed around it arose. “ That on the 22d day of November, 1899, said situation of danger continued to exist and defendant then knew that it had been created and that it continued to exist, and had such knowledge prior to that date. That, as defendant knew at said times, the danger of said situation was daily increasing by reason of the progress made in the erection of a large building on the southeast corner of Fourth Avenue and Nineteenth Street, over which lot said telephonic wire, after crossing said street from said chimney at a low elevation, ran unsupported for a long distance, pulling with its weight upon said chimney.” These allegations authorized the admission of evidence to establish a nuisance as well as negligence. They are broad enough to admit evidence showing the height, location and age of the chimney, that it was weakened by age and decay, and other facts from which the jury might have found that it was negligent to secure or maintain the wire by passing it around the chimney, or that the situation created and maintained by the defendant rendered the street dangerous for passengers. It is contended by the defendant that even though the defendant was negligent in securing and maintaining the wire by passing it around the chimney, such negligence cannot be regarded as the proximate cause of the accident, in that the allegation in the com [488] plaint is that the wire was struck above the surface of the street by the arm of the derrick'operated by work.djeh', engaged in the construction of a bmldiing on the lot-opposite, over which the telephonic wire ran, causing the chimney to break and the brick thereof to fall and to strike the plaintiff. It is true that the chimney did not fall from the mere weight of the wire and might not have fallen if the wire had not been struck by the arm of the derrick, but this fact did not as. a matter of law make the striking of the wire the proximate cause of the accident to the exclusion of the antecedent one, without which no occasion would have arisen for the intervention of a new agency. The company was bound to use reasonable -care in the maintenance of its line, and if the chimney gave way because it was weakened by age or decay, or if because of its height, location, manner of construction,, or any other defect it was not reasonably sufficient, it matters not whether the negligence of a responsible third party,'or lightning, wind or some other natural cause operated to produce the disastrous -result. It would seem, therefore, that the case, comes fairly within the rule that where two causes combine to produce an injury, both of which are in their nature proximate, one being -culpable negligence of the defendant without which the accident would not have happened, and the other some accident for which neither party- is responsible, the defendant is liable. (Sawyer v. City of Amsterdam, 20 Abb. N. C. 227; Merritt v. Fitzgibbons, 29 Hun, 634; Sheridan v. Brooklyn & Newtown R. R., 36 N. Y. 39; Ring v. City of Cohoes, 77 id. 83; Cohen v. Mayor, 113 id: 532; Phillips v. N. Y. C. & H. R. R. R. Co., 127 id. 657.) It was also for thé jury to say whether the accident could have happened but for the negligence of the defendant in running and maintaining a wire across a street at a low elevation over the building in the process of construction. The defendant owning and maintaining the wire was responsible for' any negligent condition which it permitted to exist by its passive acquiescence, whether such acquiescence folio.wed.,actual knowledge of the danger-of the situation, as charged in the 'complaint, or resulted from failure to acquire such knowledge. (Gottlieb v. N. Y, L. E. & W. R. R. Co., 100 N. Y. 462; Ward v. Atlantic & Pacific Telegraph Co,, 71 id. 81.) [489] The case presented by the complaint bears no analogy .to that of Laidlaw v. Sage (158 N. Y. 73). There was no allegation or proof in that case which tended to show that defendant was in any way responsible for the explosion, or.that there was any connection whatever between the defendant’s acts and the explosion which followed. In the present case negligence is predicated of the dangerous condition of the line and the failure to exercise an active vigilance to see that the wire was kept a reasonably safe distance from the building and the derrick used thereon. The fair intendment from the allegation of the complaint is that although the defendant and the workmen on the building acted independently of each other, the striking of the wire by the arm of the derrick was not an independent force that came in and produced the injury, but was a single act caused by the concurrent negligence of the parties and that the plaintiff would have escaped injury without the co-operation of one or the other of the causes for which the defendant is responsible. It seems to us that, under the allegations of the complaint, the question whether the defendant was in fault, whether the accident was wholly attributable to the negligence of those engaged in constructing the building, was one of fact for the jury, and that the learned trial judge erred in holding that the proximate cause of the accident was the striking of the wire by the arm of the derrick. The judgment and order should,.therefore, be reversed and anew trial granted, costs to abide the event. Woodward and Hirschberg, JJ., concurred; Goodrich, P. J., and Jenks, J., concurred in result. Judgment and order reversed and new trial granted, costs to abide the event.