Vanderpool v. Husson

By the Court, Hogeboom, J. The judge at the circuit, among other things, charged the jury that if an owner of a building contracts with another to raise a roof to his house, and in that work a derrick is employed, extending over a sidewalk which is a great thoroughfare, where many persons are continually or frequently passing, and that derrick was necessarily so extended, or it was known to the owner that it was so extended, or would be extended, then it was the duty of the owner to cause a barricade to be placed to prevent persons passing by, or to place a person there to give warning to the persons passing, and for the omission of such duty the owner is liable as for his own neglect. To which charge the defendant’s counsel excepted. In this charge I think the learned judge erred.. The general rule is, that where the work is done under a contract, and the injury occurs from the act or negligence of the servants of the contractor, and not those of the owner, the owner is not responsible. (Blake v. Ferris, 1 Selden, 48. Pack v. The Mayor &c. of New York, 4 id. 222. Kelly v. Mayor of New York, 1 Kern. 432. Norton v. Wiswall, 26 Barb. 618.) There are exceptions to the general rule, where the work or erection is itself a nuisance, or where the injury was itself a necessary result of the contract, and in some other cases not material to be noticed. (Stevens v. Armstrong, 2 Selden, 436. City of Buffalo v. Holloway, 3 id. 493. Mayor of New York v. Bailey, 2 Denio, 442. Congreve v. Morgan, 5 Duer, 495.) This particular erection was not complained of as a nuisance, nor [199] was it necessarily of that character. A temporary obstruction of the side-walks or avenues of a city is sometimes indispensable to the erection of such buildings or the making of such repairs and improvements as are essential to the comfort of the inhabitants. ¡Nor is it quite clear that the derrick itself, in consequence of its position and dimensions, might not answer all the purposes of a barricade, and strike the eye and catch the attention of passers by, so as perhaps to give more timely and effectual warning than the stick "of timber relied upon in this case to perform that office. But assuming it to be otherwise, and that prudence required other precautions-to prevent danger to persons passing by, I am of opinion that the judge restricted too much the expedients to be resorted to, to produce this effect. It is quite possible that other things might be done to inspire precaution, or give warning, quite as effectually as the placing of a barricade across the walk, or stationing a person there to give warning. The party charged with such a duty might post a notice in some conspicuous place, or across the walk itself, or do various other acts, which would just as well accomplish the object desired. The trtie question to be put to the jury was, did the owner take proper precautions to prevent the injury; in other words, was he guilty of negligence in not observing them ? To limit the defendant to the two particularly named, was, I think, calculated to mislead the jury. In a subsequent part of the charge, the learned judge seems to have fallen into the same error, and to have prescribed precisely the same means of warning as the only ones that could admonish the passer by of danger; and he expressly charges that the individual passing may assume that it is safe for him. to pass, unless he is notified to the contrary in one or the other of the two modes above referred to. I can only repeat that this seems to me to confine the proof of the absence of negligence within too narrow a compass. I do not know that in point of fact it was pretended that any other special means than those thus specifically referred to by the court were resorted [200] to to admonish passers hy of danger; but still the question of negligence is one to be gathered from all the circumstances of the case, and the defendants had a right to the benefit at the hands of the jury of the consideration of all these various circumstances in making up their opinion on this question. [New York General. Term, September 20, 1858. Davies, Sutherland and Hogeboom, Justices.] There are other questions in the case deserving of consideration, but I have not thought it necessary to pursue them. If I am right in the view thus far taken, there must be a new trial granted, with costs to abide the event. And I am of opinion that justice requires that such direction should be given to the case.