Cook v. President of the New York Floating Dry Dock Co.

INGRAHAM, First Judge. The defendants, being the owners of the Dry Dock, were employed by the owner of the steamer Ohio to raise her, for the purpose of having repairs done to her. After she was so raised, the owners employed Simonson & Lugar to repair the steamer. Simonson & Lugar made a contract with another person to put up the staging lor that purpose. The plaintiff was in the employ of Simonson & Lugar, and while so employed by them in doing the repairs upon the staging, it fell, and the plaintiff sustained the injury for which this action was brought. The evidence showed that the injury was occasioned by the staples, which supported the standards on the floating dock, being wrenched from their places, and not from any imperfection in the staging. The standards were placed there by the defendants, and persons using the dock were compelled to use these standards, as the defendants would not permit other standards to be put up, on account of driving spikes into the dock. The jury found for the plaintiff. The defendants moved for a new trial, which was granted by the judge who tried the cause, [443] upon the ground that tbe defendants having hired out the dock, they are not responsible for any injury that might happen to others while the dock was under the control of persons to whom it was hired: — from which order the plaintiff appeals. The only question submitted to us on this appeal is, whether the defendants are responsible for any injuries sustained by third persons, not in their employ, while working for others on the dock.' That no action lies -against the defendants, founded upon the contract in favor of any other persons than those to whom the dock was hired, is conceded. This was established by the cases cited, Winterbottom v. Wright, 10 Mee. &. Wels, 109 : Priestley v. Fowler, 3 ibid. 1 ; Quarmann v. Burnett, 6 ibid. 499. But the plaintiff has suggested a distinction between an action upon the contract, and one in a case for negligently buildup a structure not sufficient for the purposes for which it was hired,- and that, in such cases, any one who sustains injury by the negligence may maintain an action. There can be no doubt of the general principle, that where the law imposes a duty on a man, a neglect of that duty exposes him to liability to any one injured from such neglect. Such was the case of Townsend v. Susquehannah T. Co. (6 J. R. 90), for not building a bridge sufficiently strong. In Panton v. Holland (17 3. R. 92), it was conceded that the defendant would be liable for injury to his neighbor in digging, if guilty of negligence in so doing. In Burkle v. Dry Dock Co. (2 Hall, 151), it was held that the defendants were bound to keep their dock in a condition to be safely used for the purposes for which it was intended, by those who should -use it with ordinary care, but that their liability extended no further. So in The Rector, &c. v. Buckhart (3 Hill, 193), the defendants were held liable for negligence in leaving the wall of their building standing after a fire, whereby the plaintiff -was injured. The same principle is found in Regina v. Watts (1 Salk. 357), Payne v. Rogers (2 H. Black. 349), and Bush v. Steinman (1 Bos. & Pul. 404). The principle was still more extended in the case of The Mayor, &c., v. Bailey (2 Denio, 433). See, also, Alston v. Grant, 24 L. & E. Rep. 122. [444] In Eakin v. Brown (1 E. D. Smith, 43), it was said that the owner of the freehold was liable for injuries resulting from the condition of the freehold caused by his negligence, whether in his actual occupation or not. It was urged, upon the argument, as a distinction between those cases and the present, that the defendants arc not responsible to the plaintiff for the injuries sustained by him, because they had rented their dock to third persons, who alone had the control and who alone are responsible for the damage the plaintiff has sustained. Taking this view of. the case, and relying upon the cases before cited, the judge at special term made the order granting a now trial, which is now appealed from. Upon the trial, the judge submitted to the jury the question respecting the defendants’ negligence, and also whether the injury was occasioned by negligence in the construction of the machine or in the use of it; exempting the defendants from liability in the latter case. I am of the opinion that this charge was correct, and that the judgment should be sustained. The case of 10 Mee. & Wels. 109, was to recover for injuries arising from latent defects in the vehicle, and not from negligence in its construction. The rule is stated in the same opinion, viz.: “ to confine the remedy by action to those who stand in the relation of' the con-, trading parties, or to cases where the injury is caused by the disregard or neglect of some obligation or duly which the party causing it oiues to the party injured,” or, as is afterwards more fully stated, “ where a public duty or obligation arisesand that rule, I think, is a correct one. A man who makes a machine, to be hired out for a particular purpose, is under an obligation to make such machine so as to be sufficiently strong to answer the purpose intended. In The Mayor, &c., v. Cunliff (2 Comst. 163, 180), Judge Strong says: “ The court below based the responsibility of the defendants on the general ground, that where one party sustains an injury by the misfeasance of the other, the sufferer may maintain an action for redress against the wrongdoer. That rule operates where the injury'- is effected directly by the wrong, or where it [445] results from tbe malconstruction of some object while it is in tbc possession, or under the control, or in any manner used under the agency or instruction of the party originally in fault.” In Blunt v. Aiken (15 Wend. 522) a distinction is made be tween the owner who uses or suffers others to use the property which causes the injury, and a former owner who had been guilty of negligence in the construction; and in that case, it is 'said, if it had been shown that the defendant had rented (instead of sold) the premises, an action might be maintained against him. In Thomas v. Winchester (2 Seld. 397) a dealer in drugs was held liable to all persons injured, by using as medicine drugs put up by him with a wrong label, although such drugs were not sold to the party injured by the defendant. A distinction which I have above referred to was drawn by the counsel, on%ie argument of that case, between the liability as arising on the contract as claimed in 10 Mees. & Welsb. 288, and kindred cases above referred to, and that arising on a duty imposed by law. But, in addition to the fact found against the defendants in this case, of the insufficiency of the dock for the purposes for which it was used, there is hero evidence that the defendants required the defective standard to be used, ánd prohibited the erection of any others upon the dock. This adds much force „o the argument that the duty resting on the defendants was to make it sufficiently strong for the purposes for which it was rented. By such a rule, they compelled the use of the defective machine, and should be held responsible for the consequences. The case of Godley v. Hagerty (20 Penn. S. Rep. 387) is a strong case in support of the defendants’ liability. The order at special term should be reversed. Beady, J. The defendants’ business is to raise vessels from the water to be rpaired, and to lower them again when the repairs are completed. After the vessel is raised on the defendants’ dock, they charge for the use of the dock a certain sum per day. They hire the dock to the owners of the vessel, or persons desiring it, for the purpose of repairing, and that species of bailment [446] known as locatio ret is created. The letter under such circumstances is understood to warrant against all such faults and defccls as would entirely prevent the contemplated use and enjoyment of the bailment, or render it dangerous, but not against those which diminish its convenience and appropriateness for the use designed. Story on Contracts (3d ed.), § 730, citing Story on Bailments, § 390. The dock would be useless for the purpose of repairing without staging erected thereon. The defend ants furnished the standards to which the staging should be attached, to the exclusion of all others. The design and object of the dock being for public use and the defendants’ benefit, operate as an invitation to artisans and laborers to use it in the manner devised by the defendants, and prescribing the manner innvhich it shall be used, is a guaranty to all who so use or employ it, that it is sufficient and safe. When the mechanic is compelled to labor in situations of danger, and is restricted to the mode of averting that danger, the person so restricting him, however remote, should be responsible for injuries arising from the latter’s negligence or carelessness. The defendants must be regarded as having partially erected the -staging, by supplying and erecting the standards to which it was attached, and Simonson & Lugar as having finished it. The part so erected by the defendants was insufficient and gave way, and the plaintiff's injuries arose from such insufficiency. The circumstance mentioned, if it did not create a quasi relation of master and servant between the defendants and plaintiff, at least, was a guaranty to the latter that the standard was fit for the purpose and safe. If so, then there was an implied contract between them, independently of the public duty or obligation imposed by law on the defendants, arising from the character of the machine hired. For these reasons, in addition to those assigned by Judge Ingraham, I think the order at special term should be reversed. Order granting a new trial reversed.