Turner v. Degnon-McLean Contracting Co.

O’Brien, J.: Upon this appeal the single question is whether the defendant was liable upon the theory of trespass. The verdict of the jury was conclusive upon the fact that the plaintiff, while lawfully using the public street, was struck by a stone ejected by a blast set off by the defendant in the work of constructing a section of the underground rapid transit railway at Forty-second street. If the plaintiff had been on his own land and had been injured from the same cause, the defendant’s liability upon the theory of trespass would be established under the authority of St. Peter v. Denison (58 N. Y. 416). It was therein held (head note) that “ the casting of stone and earth by means of a blast from the bed of the [136] canal upon the lands of an adjoining proprietor by a contractor with the State, engaged in the work of the Erie canal enlargement, was a trespass, and although the work was done without negligence he was liable for the damage resulting.” So, too, it was held by this court in Wheeler v. Norton (92 App. Div. 368) that a subway contractor, such as this defendant, who was engaged in excavating under a public highway, was liable for trespass without proof of negligence for breaking, by force of a blast, a water pipe in the street, which resulted in damage to adjacent premises by flooding. And in Sullivan v. Dunham (161 N. Y. 290) it was held (head note) that “ one who, for a lawful purpose and without negligence or want of skill, explodes a blast upon his own land and thereby causes a piece of wood to fall upon a person lawfully traveling in a public highway, is liable as a trespasser for the injury thus inflicted.” In the Denison and the Norton Cases (supra) the injury was inflicted by trespass upon private property, whereas in the Sullivan Case (supra) the trespass was by a private owner upon public property. It is contended by the defendant that the fact that here the injury was inflicted upon a pedestrian on a public highway by a contractor engaged in making a public improvement, makes a distinction in principle. This contention attempts to secure support by the argument that the contractor is in the same position and is entitled to the same immunity as would be the city of New York were it doing the work without the intervention of a contractor. It is unnecessary for us to go to the extent of holding that the city, were it conducting the work itself, would be guilty of trespass if it permitted stones to be cast upon a public street which the public was using, or that for the injury inflicted upon a passerby at a place removed from the line of work it would be liable. Much, however, might be said in favor of the view that the city as contractor, with respect to injuries so inflicted, would be liable. It must be remembered that the control of the streets is in the municipality, in trust for use of the public. Among the other rights and privileges which the city has in and to the streets is the right to use and permit their use for public purposes and for public improvements. In the prosecution of such public work it would not be liable for consequential damages to property resulting from the proper and lawful performance of such work; but this is quite different from saying that there [137] has been conferred upon the municipality the right to injure a passerby on the street who is lawfully using it. It is unnecessary, however, for us to determine the question of what would be the liability of the city were it the contractor, because, in our view, the premise upon which the argument of the appellant is built, namely, that the contractor stands in the same position as would the city if engaged in the work, is not sound and cannot be supported. As was said in Mairs v. Manhattan Real Estate Assn. (89 N. Y. 506): “ A municipal corporation may, in many cases, in the exercise of powers legally granted to it for public purposes, do acts with reference to the public streets which may result in consequential injuries to the property of adjacent owners, and be exempt from liability except for negligence, but it cannot delegate power to private individuals to be exercised for their own private benefit, to do in jury to the property of their neighbors and relieve them from responsibility for the damages they may occasion, or reduce their liability to such as may result from want of care.” In St. Peter v. Denison (supra) it was contended that because the contractor was engaged in a State work he was not responsible for blasting which injured private property, and the court said : “ The point is made by the defendant that the State having authorized him to do this work, and, impliedly, to do it by blasting, holds the relation to him and to the plaintiff of a principal in an agency. This may not be maintained. The relation of the State is plain. It had work to do. The defendant agreed to do it, looking for his own profit in it. All the authority he had from the State went no farther than that he should do it in a lawful way. He was not the agent of the State. The State could not interfere with him so long as he lived to his contract. The manner of doing it was his own, and the State was not responsible for it.” And what was further said in that case is also applicable here, that “ The defendant does not show any authority from the commissioners save that given by his contract * * *. Hence the defendant had no right greater than any other individual to take or intrude upon the premises outside the external lines of the enlarged canal.” So in this case, we think that the contractor was not the agent of the city, nor did it stand in the same position. The contractor had no right to use or intrude upon the public street outside the line of [138] the public work which under its contract it was prosecuting, and for the act of throwing a stone upon the public highway and injuring the plaintiff, who was lawfully there, it is liable as a trespasser. Accordingly, we think that the judgment and order should be affirmed, with costs. Van Brunt, P. J., and Patterson, J., concurred; Hatch and Laughlin, JJ., dissented.