WILLIAM HEFFERN, as Administrator, etc., of EDWARD HEFFERN, Deceased, Appellant,
THE VILLAGE OF HAVERSTRAW and THE EXCELSIOR BRICK COMPANY OF HAVERSTRAW, Respondents, Impleaded with JOHN W. GILLIES and Others, Defendants.
APPEAL by the plaintiff, William Heffern, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant The Excelsior Brick Company of Haverstraw, entered in the office of the clerk of the county of Kings on the 9th day of June, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 26th day of May, 1910, setting aside the verdict of a jury against the defendant The Village of Haverstraw and denying the plaintiff's motion to set aside the verdict in favor of the defendant The Excelsior Brick Company of Haverstraw, and also from an order entered in said clerk's office on the 18th day of October, 1910, resettling the prior order.
Martin T. Manton, for the appellant.
Alonzo Wheeler, for the respondent The Village of Haverstraw.
On January 8, 1906, Edward Heffern while standing in Rockland street in the village of Haverstraw was killed. In close proximity to the street were deep excavations into which the earth between these excavations and the line of the street, and also that forming part of the roadbed of the street itself, fell, drawing him down to his death. This action was brought to recover for the pecuniary injury resulting to his next of kin. When originally brought the Excelsior Brick Company, the village of Haverstraw and fourteen individuals were named as parties defendant. As to all of the defendants except the brick company and the village the action has been terminated, either by the voluntary act of plaintiff or by judgment of nonsuit from which no appeal has been taken.
Upon the trial of this action the jury found a verdict in favor of the brick company and against the village. Upon motion the trial
court set aside the verdict against the village, and ordered a new trial. The plaintiff moved to set aside the verdict in favor of the brick company, and for a new trial as to it. Plaintiff appeals from the judgment in favor of the brick company, and from the order denying his motion for a new trial as to it, and also from the order setting aside the verdict and granting a new trial as to the village of Haverstraw. Plaintiff concedes in his brief that the question of the liability of the brick company was one of fact for the jury. We think that its finding thereon is not against the weight of the evidence.
No exceptions were taken at the trial nor argued upon this appeal which, so far as the brick company is concerned, merit consideration. The judgment in its favor must be affirmed. We think also that the order setting aside the verdict against the village was right.
The complaint alleged that the caving in of the street and the adjoining premises was caused by the 'wrongful, unlawful and negligent acts of all the defendants herein by digging or causing to be dug by them, earth from or in the vicinity of or adjacent to said street and premises, and carrying or causing to be carried away the earth or dirt so excavated, thereby depriving the said street and houses and premises of their proper support and causing the same to cave in and fall down, thus destroying the said houses and property as well as causing the death of said deceased; and also in causing, permitting and allowing the said work to be done for a long time, and the said street, houses and premises to remain in a dangerous and unsafe state and condition, without warning or notice and without right or authority; and in causing, permitting and allowing the said public highway and adjacent buildings and premises to be made dangerous and unsafe, and in allowing and permitting the same so to remain for a long and unreasonable and unnecessary length of time, with full knowledge of the fact that the same were dangerous and unsafe, or when the defendants and each of them could by the exercise of reasonable care have ascertained that the same were dangerous and unsafe, and in failing to take any precautions whatsoever to prevent the occurrence of said disaster.' The complaint further alleged that the defendants 'by their wrongful
acts in digging and excavating as aforesaid, thereby created and maintained a public nuisance which endangered the lives and safety of a considerable number of persons, including said deceased.' There was no suggestion in the evidence that the defendant, the village of Haverstraw, was an active participant in the digging above referred to, or that it caused the excavation to be made. If it could be held liable at all under this complaint it was for permitting the highway to remain in a dangerous and unsafe condition by reason of the alleged wrongful and negligent acts of the other defendants. But the jury have decided that the brick company, the only other defendant, was not guilty of any wrongful or negligent act which was the proximate cause of the death of plaintiff's intestate. As the ground of the liability of the village is predicated upon an omission to prevent or remedy the wrongful act of its codefendant, if such codefendant is acquitted of fault in this regard it is impossible to hold the village liable. But if the evidence had established wrongful conduct or negligent omission of duty on the part of the village, I do not think that plaintiff could recover as against it, for the reason that the freedom from contributory negligence of his decedent was not established. The point was sharply raised in this case by the motion to dismiss, and in this respect it differs from some other cases which have previously been before this court, growing out of the same disaster. Plaintiff's intestate was not, at the time of the accident, using the highway for ordinary purposes of travel. He was not even a casual spectator of the occurrences there going on, whose attention was drawn to them while traveling in the vicinity, and who, in consequence thereof, loitered for some short period therein. There were at least three separate and distinct subsidences or landslides on the evening in question, occurring at intervals of a few moments. When the first of these occurred Edward Heffern ...