
    Joseph Swan, App’lt, v. John F. Jackson, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    Negligence—Manufacturer of defective article.
    Defendant constructed an ice box for one B., a butcher, including a platform for use in putting in the ice. While plaintiff, an iceman, was upon such platform, engaged in putting in ice, it gave way and plaintiff fell and was caught and his arm injured on a meat hook. There was proof to show that the arms supporting the platform were of inferior material and negligently constructed. Held, that there was no such privity of contract be tween plaintiff and defendant as would authorize a recovery for the injury; and that the defect was not such as to render the article itself imminently dangerous to others.
    
      Appeal from judgment entered upon a dismissal of plaintiff’s complaint at circuit.
    
      Charles J. Patterson, for app’lt; Isaac Fromme, for resp’t.
   Dykman, J.

The plaintiff in this action constructed an ice "box for one John Boettcher who kept a meat market in the city of Brooklyn, The box was about twelve feet high and upon the front side there was a platform about six feet high from the floor. The platform was supported by iron arms and was designed as a standing place for men who were filling the ice box, to enable them to place the ice in the box when the ice was hoisted for that purpose by ropes and pulleys.

There was testimony tending to show that these iron arms were defective.

The plaintiff was in the employ of an ice company which supplied Boettcher with ice and it was the duty of the plaintiff to deliver and deposit the ice into the box. To enable him to perform that duty he was obliged to go upon the platform with another man, and while he was so upon the platform engaged in placing ice into the box, one of the iron arms broke and gave way, and let the platform down, and the plaintiff in falling received very severe injuries.

The plaintiff’s complaint was dismissed upon the trial at the close of his case, and he has appealed from the judgment.

Negligence is an omission of duty, or the violation of the obligation which enjoins care. Generally the law imposes no liability where there is no privity, and hence the rule by which actions of this character are determined is that a stranger cannot recover from the builder for damages resulting from the defective construction of any edifice, structure or article, after the title of the object has changed and has passed from his possession, control and direction. The reason for the rule being that the person sought to be charged has no connection with the wrong, because the entire control of the article has passed from the builder, and is at the time-of the injury subject to the existing owners and proprietors.

Judge Strong in his opinion in the case of The Mayor v. Cunliff, 2 N. Y., 175, illustrated the rule by the following hypothetical case: “A carpenter is hired to build a barn and furnish the materials. He carelessly places a timber slightly defective under the mow, and the barn is accepted by the owner. Some years afterwards the timber, owing to its original defect, breaks and falls upon a laborer who sustains a serious injury. Can he recover of the carpenter ?” After stating another suppositional case in the same connection he says: “ I know of no decision which would authorize a recovery under such circumstances.”

The case of Loop v. Litchfield, 42 N. Y., 351, was this: The defendants in that action manufactured a balance wheel for sale- and sold it to one Collister who purchased it for his own use in a machine for sawing wood by horse power. There was a hole in the rim of the wheel caused by shrinkage in casting which weakened the wheel. That defect was visible and the attention of Collister was called to it before the purchase. The defendants filled the cavity with lead, secured by a bolt to receive which a hole was drilled through the rim, still further weakening the wheel, and it was then painted over and by the request of Collister adjusted to the machine by the defendants. After it had been in use over four years the wheel burst, parting where it had been drilled to receive the bolt, and a fragment struck the plaintiff’s intestate, who was using the machine with the consent of Collister, with such violence as to cause his death. In that case it was decided by the court of appeals in an action brought under the statute for causing death by negligence that the plaintiff could not recover.

This case and the suppositional case of Judge Strong have been cited fully because they bear much similarity to the case in hand.

The case of Losee v. Cluti, 51 N. Y., 494, bears much resemblance to the last case, and was decided in the same way upon the same principle, and we think these cases are decisive of this appeal.

Yet, notwithstanding the well settled rule of law which we have stated, the builder or manufacturer of an article may incur liability to third parties where the defects are such as to render the article itself imminently dangerous, and where serious injury and misfortune would result from its use.

The case of Thomas v. Winchester, 2 N. Y., 397, involved that principle, and in the subsequent cases of Coughtry v. The Globe Woolen Co., 56 N. Y., 124, and Devlin v. Smith, 89 id., 470, the doctrine was extended so as to apply to the erection of a very high scaffold. In the former case the scaffold was about fifty feet from the ground, and in the latter it was about ninety feet.

In both these cases the court of appeals reached the conclusion that misfortune to third persons not parties to the contract would be a natural and necessary consequence of the builder’s negligence, and that the cases were taken out of the operation of the general rule of law by that fact.

How the plaintiff seeks to bring this case within these last named decisions, and the decision of the English -court of appeal in the case of Heaven v. Pender, L. R., 11 Q. B. D., 503.

We do not think this case sufficiently analogous to the last named cases to justify the application of the principle upon which they were decided.

The scaffold in question was six feet from the floor and constructed and intended to sustain the weight of a man while he was filling the ice box, and we do not think it can be assumed that misfortune or injury to third persons not parties to the contract would be a natural and necessary consequence of the imperfect construction of the box or the scaffold within the meaning-of the decisions invoked in aid of this action.

Our conclusion is that this case is to be controlled by the general rule of law established in this state and not by the exceptions to that rule recognized in the case of Devlin v. Smith, 89 N. Y., 470.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  