Appeal from Trial Term, Kings County.
Action by James F. Hughes against the Harbor & Suburban Building & Savings Association and another. From a judgment for plaintiff, and from orders denying motions for a new trial, defendants appeal. Affirmed.
[115 N.Y.S. 322] Alexander S. Bacon, for appellant Harbor & Suburban Building & Savings Ass'n.
Edward P. Mowton, for ap pellant John C. Gabler Co.
Frederick B. Campbell (Henry S. Curtis, on the brief), for respondent.
Argued before HIRSCHBERG, P. J., and JENKS, GAYNOR, RICH, and MILLER, JJ.
On the morning of September 28, 1907, as the plaintiff, on his way to his office, was passing along Montague street, in the borough of Brooklyn, in front of the Arlington Apartment House, a brick, falling from the top of said building, a distance of 100 feet, struck him on the head, and inflicted injuries for which a jury has awarded him the sum of $40,000. The judgment is against both defendants, the owner and a contractor engaged at the time in putting on a new roof; and both appeal, each asserting that there is no evidence of negligence against it, and that errors were committed by the trial judge.
[115 N.Y.S. 323] The evidence discloses that a fire had occurred on the 9th of September, which had partly consumed the woodwork of the three upper stories and the roof, and had wholly burned a wooden tower, as it is called, built on the brick wall above the tenth floor, on a corner of the building next to the street. The supports of the metal roof cornice in front of the building were at least partly burned, and the seams of the metal work were so affected by the heat that a part fell into the street and the rest remained hanging. There is evidence tending to show that the mortar on the top of the brick wall had so been damaged as to require the relaying of some 2,000 bricks, and that, at the extreme top, there were a number of bricks, a part of the wall, so loose that they could be picked out by hand. While that evidence is challenged by the defendant owner, it is supported by the reasonable inference of the effect of the fire, and fully justifies the conclusion that that was the condition. No claim is made that the loose bricks were taken out of the wall, or that any provision was made to repair or change its condition, from the time of the fire to the time of the accident. Pending the arrangements preliminary to making general repairs, it was necessary to put a roof on the building to protect it from the elements, and the defendant owner made a contract with the other defendant to do that. That contract did not require or contemplate any repair or change of the wall as it existed when the contract was made. The contractor was to put in new roof beams, a new roof, etc., and to " do all necessary beam filling and remove all rubbish, which belong to the roof, from the premises." (Italics are mine.)
While some claim is now made that that required the removal of the loose bricks in the wall, if there were any, it is plain that the parties did not so understand. Indeed, the defendant owner says that there were none; and rubbish belonging to the roof does not include any part of the walls of the building. The roof beams were set into holes four inches deep on the inside and two feet below the top of the walls. All the contractor had to do to the walls was to take the partly burned beams out, replace them with new, and, if necessary, fill up the holes where the ends of the beams rested. The said contractor began work on the 24th of September, and at the time of the accident some of his men were at work on the roof at or near the place from which the brick fell. A derrick had been rigged up for hoisting material from the street; but it does not appear that it was in use at the time of the accident. The day before the accident a brick was observed by people in the street to fall from the building upon the walk and break in pieces; and the street sweeper testified that for several successive days immediately preceding the accident he had swept from the sidewalk in front of the building pieces of brick and mortar. No shed was erected over the sidewalk, and there was no barrier, sign, or watchman to give warning. The defendant owner was in possession and control of the building and had a watchman on the ground. No work was being done at the time of the accident, except as hereinbefore stated.
It cannot be doubted that the owner of this building should have ascertained the condition of the walls as soon as possible after the fire. The defendant contractor had actual knowledge of their condition, [115 N.Y.S. 324] as its president testified to it. Those in possession and control of tall buildings, beneath which pedestrians have to walk, should exercise care commensurate with the danger. The cases of objects falling on pedestrians in public streets are the common ones for the application of the rule of " res ipsa loquitur." Mullen v. St. John, 57 N.Y. 567, 15 Am. Rep. 530.The falling of the brick called for an explanation from the owner in possession and control. He attempted to meet that burden by shifting the responsibility on the so-called independent contractor, and now seeks to have the inference drawn that the brick was dislodged by the carelessness of workmen for whom said defendant owner was not responsible. The defendant contractor attempted to shield itself from responsibility by showing that the top of the wall was in such an unsafe condition that a brick was liable to fall from it at any moment, and that it had nothing to do with the wall; and it contends that no inference can be drawn from the fact that its men were at work on the roof in close proximity to the wall.
I think the reasonable inference is that the brick was in some way dislodged by the men at work on the roof; and, for the purposes of this case, it seems to me immaterial whether the immediate act of such workmen was negligent or not. The defendant owner employed a contractor to put a roof on the building and to set the roof beams in a wall which had been damaged by fire, without making any provision to repair, or insure the safety of, the wall, or to protect pedestrians on the street. A reasonably prudent man would have apprehended that the doing of that work might dislodge some of the loose bricks and cause them to fall into the street. It may be a matter of speculation whether the immediate act which caused the brick to fall was careless; but the plaintiff is not to be turned out of court for that. The defendant owner was negligent for not repairing the wall or taking any measures to protect the public, and it cannot free itself from the consequences of its carelessness because the negligence of some one else for whom it was not responsible may have concurred with its own. It could not discharge its duty to protect the public from this dangerous wall by letting a contract, not to repair the wall, but to make it more dangerous. The defendant contractor is in no better case. It undertook to construct this roof and to set roof beams into a wall which, it knew, was in an unsafe condition. If its men were careless, of course, it is liable; and, even though they were not careless, the jury might well say that a man undertaking to set roof beams into, and construct a roof against, an unsafe wall 100 feet above the sidewalk, should, in the exercise of ordinary care, take some precautions to protect pedestrians from the danger of falling bricks. The jury have said that both were careless, and I think that both were culpably careless.
One of the cases relied upon by the defendant owner is the case of Wolf v. American Tract Society, 164 N.Y. 30, 58 N.E. 31,51 L.R.A. 241.In that case the plaintiff was injured by a brick falling from a building in the course of construction, upon which 19 different contractors were employed, and there was no proof as to who set the brick in motion. The plaintiff sought to hold in the Court of Appeals a judgment against the general contractors, but did not appeal [115 N.Y.S. 325] from a judgment dismissing the complaint as against the owner. Had the respondent in that case been the owner, who had undertaken, through the instrumentality of 19 different contractors, to construct that building, an entirely different question respecting his affirmative duty to protect pedestrians would have been presented; and I apprehend that the case would have been decided the other way. It will be seen, from the two opinions in that case, that the point of difference was whether the duty of the owner to protect the public devolved on the general contractor.
I am unable to perceive how the doctrine that one is not liable for the negligence of an independent contractor has anything to do with this case. The defendant owner has not been made liable for the negligence of the contractor, but for his omission to discharge an affirmative duty to the public. If it had employed a contractor to repair and make safe this wall, and in the prosecution of that work a brick had been dislodged, the doctrine contended for might be applicable, although I am not now prepared to say that, even in that case, the affirmative duty of the owner to pedestrians in the street could be delegated. None of the cases cited by the appellant involve that question. It is sufficient for the purposes of this case that the owner never ...