Osborn v. Union Ferry Co.

By the Court, ClÉrke, P. J. I. Unless the defendant was relieved from responsibility by the contract with the Architectural Iron Works Company, assuming for the present that the question of negligence is involved in this case, I am inclined to the opinion that it was guilty of negligence in not having light in some place on its premises, near enough to protect passengers coming out of the gate. A light could have been placed, without difficulty, on some part of the premises, to enable passengers to avoid any obstruction placed by them so near the exit for passengers, that without such a light ordinary care would [640] scarcely enable them to do so. ■ If a ferry company at the very threshold of its gate places a log, against which its passengei-s would be in danger of stumbling in the dark, I think it is bound to do everything in its power to guard against the danger; and the omission to do so is negligence. Passengers, without being previously informed of it, are not apt to suspect such danger, and passing out in the crowd, have their attention diverted from the apprehension of it. It was proven in the case before us that the piece of timber over which the plaintiff fell could not be seen unless a person was expressly looking to see it. It was a dark, misty night, and there was no light around the ferry-house. A light, as I have already said, could have been placed somewhere on th'e defendants’ premises, contiguous to the place where the timber was placed; and the omission to do so was such negligence as would make it liable for damages, to the plaintiff, unless it is relieved from liability by the fact that it was placed there by the Architectural Iron Works Company in the course of performing a contract by which they undertook to erect a new ferry-house for the defendant. II. The recent reports abound with decisions defining and fixing the liability of persons on whose premises accidents occur, while work was being performed there under a contract between them and another person. Undoubtedly, the absolute liability of owners has been greatly modified. The ordinary rule, that the master is, in all cases, liable for the negligence of his servant, does not, unqualifiedly, apply to injuries caused by the negligence of a contractor or his employees. But I think the sum of all the recent decisions is, that where the contractor has stipulated to use the necessary precautionary, measures to protect the public against accidents, the 'owner or employer is relieved from responsibility. (See City of [641] Buffalo v. Holloway, 3 Seld. 493; Storrs v. City of Utica, 17 N. Y. Rep. 104.) In this case, the contract between the defendant and the Architectural Iron Works Company does not provide for the use of any such precautionary measures. To be sure, the contract provides that “ in case the owner shall be held or made liable for any injury arising out of neglect or willful default of the said party, (the Architectural Iron Works Company,) or any of their workmen, the owner may deduct any such amount as he may be obliged to pay on said account from the contract price.” This provision was obviously inserted, not to shift the responsibility to third persons on the contractor, but to indemnify the owner for any damages which such persons may recover against him, on account of the negligence of the contractor. III. But the question involved in this case is something more than a question of negligence. The piece of timber, over which the plaintiff fell, was placed and continued in the public street at the procurement and with the concurrence of the defendant. The placing of it there, and keeping it there, was the commission and continuance of-a nuisance. It was an obstruction of the full and free enjoyment of the easement. The public being entitled to the use of the street or highway, whoever, without special authority, obstructs it, or rendei-s its use hazardous, by doing any thing upon, above or below the surface, is guilty of a nuisance; and any one sustaining special damage from it, without any want of due care to avoid injury, has a remedy against the person continuing the nuisance. The act is wrongful, and <joes not involve a question of mere negligence ; and consequently, in the ease before us, even if the contract between the defendant and the Architectural Iron Works Company contained a provision that the latter should use all precautionary measures to protect the public, nevertheless, the defendant would be liable [642] for the damages sustained by the plaintiff. (See Congreve v. Smith, 18 N. Y. Rep. 79; Creed v. Hartmann, 29 id. 591.) [New York Generar Term, January 4, 1869. The judgment should be reversed, and a new trial ordered; costs to abide the event. Geo. G. Barnard, J., concurred.