JENNIE BRADY, as Administratrix, etc., of JOHN C. BRADY, Deceased, Appellant,
THE CITY OF NEW YORK and Others, Respondents, Impleaded with EDISON ELECTRIC ILLUMINATING COMPANY OF BROOKLYN, Defendant. GUISEPPE DICRESCENTI, as Administrator, etc., of COSIMO DICRESCENTI, Deceased, Appellant,
THE CITY OF NEW YORK and Others, Respondents, Impleaded with EDISON ELECTRIC ILLUMINATING COMPANY OF BROOKLYN, Defendant.
APPEALS by the plaintiff, Jennie Brady, as administratrix, etc., and Guiseppe DiCrescenti, as administrator, etc., in the above-entitled actions, from separate judgments of the Supreme Court in favor of the defendants, one entered in the office of the clerk of the county of Kings on the 5th day of May, 1911, upon the dismissal of the complaint as to the defendants the City of New York and Brooklyn Union Gas Company by direction of the court at the close of plaintiffs' case; the other entered in said clerk's office on the 8th day of May, 1912, upon a dismissal of the complaint as to the defendants Rodgers and Hagerty, and also from orders entered in said clerk's office on the 31st day of August, 1911, denying the plaintiffs' motions for new trials in said actions.
William H. Griffin [Martin T. Manton with him on the brief], for the appellants.
James D. Bell [Frank Julian Price and Archibald R. Watson with him on the brief], for the respondent city of New York.
Frank Verner Johnson [Amos H. Stephens with him on the brief], for the respondents Rodgers and Hagerty.
The appellants, dismissed when they rested at the trial severally representatives of two persons killed, one a child playing on the street, and the other a workman in an excavation for a sewer in the street, charged culpable negligence against the city of New York and Rodgers and Hagerty, its contractors to make the sewer, as well as the Brooklyn Union Gas Company, whose pipes were suspended in the excavation, but against whom the appeal unquestionably fails. The excavation in Gold street, in width eighteen feet, occupied most of the roadway, while its depth was from forty-five to forty-seven feet and its length some one hundred and thirty-five feet. Its sides were sheathed and at intervals of five and one-half feet for its entire length cross braces, some ten inches square, rose with intervening spaces nine or ten feet. From beams on the surface of the excavation were suspended the lines of gas pipes and electric wires. As the work advanced the completed portion of the excavation so far as convenient was filled, the beams that interfered with the advancing work were removed, as this enabled a form in use to be pushed forward. At the time of the accident the men had, through a distance of some sixty feet, removed beams two tiers from the bottom of the sewer, when the timbering before or after an explosion fell in, and the land adjacent to the excavation, including portions of the sidewalk, was drawn in for its entire length. The respondents' position, as understood, is that no cause of action in favor of either plaintiff is proved against anybody, inasmuch as the cause of the ruin is not known. The child, whose case is first considered, in rightful use of the street, was killed because the sidewalk on which he stood was drawn into the excavation. Such an engulfment is so abnormal that the persons responsible for the excavation and the appropriation of
the street therefor should make proof of such care as would meet the presumption of negligence raised by the ruinous invasion of the public way. When sidewalks so disappear, due lateral support against the excavation is obviously absent, and whoever is shown to have been responsible for the work should explain why what the law requires to be done for such support was not afforded. Hence, when the plaintiff Brady showed the happening, the city primarily, and any one co-operating with it in the work, were put to proof. But the plaintiff made more proof, and what more she made as it is claimed by the respondents, leaves the plaintiff's case unproved. So the next inquiry is whether the presumption of negligence is lost by the evidence received. The uncontradicted facts leave the gas company without fault. What, then, of the city and its contractors? The contractors are shown to have shored efficiently the sides of the excavation until the time in question. What, then, caused the fall? It was either the explosion of gas, the removal of too many timbers, or the removal of too many timbers in conjunction with defective timbers left. It was a question of fact whether the cause was explosion or defective operation and material. There is much evidence from which a jury, in case of submission to it, could justly find that the timbers first gave way and carried with them the pipes and electric wires. If the falling of the timbers was the proximate cause, then the evidence of the timbers removed and the weakened condition of some of the timbers left, by reason of holes and rottenness, if such the jury found to be the case, strengthens the presumption of negligence, and even in the absence of such presumption, based upon the rule of res ipsa loquitur, would have justified the jury in finding that the persons responsible for the care of the place were negligent. But what if the jury found that the explosion was the proximate cause? Would the rule res ipsa loquitur apply so as to require proof of due care to counteract the presumption? Explosion on private property was not deemed prima facie evidence of negligence as to persons injured without its limits (Cosulich v. Standard Oil Co., 122 N.Y. 118), and it may be that if gas pipes, as usually laid, exploded, such holding would apply even as to persons injured on the street. But here it is
shown that the gas pipes were removed from a uniform and solid support in the earth and hung on supports placed at intervals and in proximity to electric wires similarly removed from ground covering and support, and that there was a noise like an explosion, which flames of fire followed. That state of facts would, in absence of explanation, permit the inference that what was imbedded and so protected had been exposed to possible bending or breakage at the joints, or had been uncovered so as to permit gas to leak into the air in case the disturbed pipes were defective, and that, too, in the neighborhood of electric mains. Such facts joined to an explosion would be sufficient evidence of negligence in the case of injury to a person on the street and demand evidence of requisite care on the part of responsible parties. The streets are made for the people, and it would be an intolerable burden, in the case of a sidewalk undermined by explosion of pipes and wires hung on temporary supports, to compel the injured or the survivors of the dead to explain, after examination in the wreck and debris, what the support was and why the maintenance was defective. The actors knew the facts and should give evidence that no fault of their own caused the upheaval. But it is not necessary to state in this case that the mere explosion is sufficient, inasmuch as such explosion in association with such facts as I have detailed, if the jury found them to exist, made such prima facie case of negligence as to require proof of due care in the support of the pipes and inspection of their condition. But does the foregoing apply against the city as well as its contractors? It applies to the contractors, for what was done they did, and if the nature of the work required something omitted it was their duty to supply it. The contract between them does not appear, but it is inferable that, as the contractors undertook to do the work, they assumed to do it in a proper way and with proper protections. The work was lawful, it was not inherently dangerous, nor did the injury result essentially from the nature of the work, but from the method of doing it. But the city was not relieved of care that the surface of the street and sidewalks, so far as use of them was permitted, be kept reasonably safe, nor do I consider that the city could entirely shut its eyes to the way the work was carried
on, but rather that some fair ascertainment and inspection of methods and conditions should accompany the work. This duty, it may be assumed, was done as to the method of shoring adopted, which had to the time proved sufficient. But it could not be fairly expected that the city would watch each detail of the work--for instance, the removal of beams from time to time as the work advanced. There is evidence of defective beams rotten in places, but the proof in that regard is not sufficient to show negligence on the part of the city in inspection. That would require a minute examination of material and operation that would place far too great burden upon a municipality in its relation to an independent contractor in a work like the present one. The city has a duty respecting obstructions in the street, and, as I consider, it cannot excavate or undermine streets or delegate the power to others to do so, regardless of the intrinsic danger or danger arising from the nature of the work, or from the general methods of doing the work, but it is not required to inspect timbers stick by stick, or follow operatives as they erect or remove them, nor, if the general method of supporting gas pipes and wires is not proven negligent, is it obliged primarily to keep up such a system of inspection as would make it liable upon proof of explosion of gas. The contractors are the persons in immediate charge, and the explanation rests upon them to show that they did what requisite prudence required. Therefore, no liability on its part is proven, or evidence thereof adduced in either the Brady or DiCrescenti case. But, in the Brady case, the issue as regards the contractor should have been left to the jury in that (1) the engulfment of the sidewalk under the facts proven raised a presumption of negligence, and this is so whether it was caused initially by the fall of the ...