
    Mary Peard, App’lt, v. John D. Karst, Jr., et al., Resp’ts.
    
      (Supreme Court, General Term, First Department
    
    
      Filed May 16, 1890.)
    
    1. Negligence — Excavations in street.
    It is the duty of the person making an excavation in the street to see that it is properly and carefully covered so as to make the street as safe for passage as before, and the obligation to keep it safe devolves upon any person who subsequently continues it in an improper or unsafe condition, and notice of a defect which could be discovered by proper examination is not necessary to fix his liability.
    2. Same — Liability of contractor.
    Plaintiff was injured by the turning of loose boards which were temporarily substituted for the sidewalk where trenches had been dug to lay pipes to a building in course of erection. Defendant IC. was the contractor for the work, and by his contract was to do the mason, carpenter and iron work, do all digging, cesspools, trenches, etc.; also all flagging with earth well rammed and made solid; to flag the sidewalk, and to he responsible for accidents to individuals. Contracts were made with other persons for digging the cellar and for the plumbing work. It did not clearly appear which one excavated these trenches. The court dismissed the complaint, and refused defendant’s request to go to the jury on the question of possession and charge of the premises at the time of the
    • accident. Held, error; that as to defendant K. the question of possession should have been submitted to the jury.
    (Van Brunt, P. J., dissents.)
    Appeal from judgment dismissing complaint.
    
      George Bell, for app’lt; George H. Yeaman, for resp’ts.
   Brady, J.

This was an action brought to recover for injuries resulting, it was charged, from the negligence of the defendants.

On the 6th of October the plaintiff, while walking along Third avenue, between Sixty-seventh and Sixty-eighth streets in this ■city, was thrown down by the turning of loose boards which had been substituted for the sidewalk. At the time of the accident the defendant was the contractor for the erection of buildings at the locus in quo.

The flagging had been removed from the sidewalk and trenches had been made therein for pipes, which had been filled, leaving the earth rough and uneven, and boards had been placed along what when finished would be the sidewalk. They were not fastened to the earth and had no stringers or supports under them.

The owners of the land had made a contract with the respondent and which called on his part for mason, carpenter and iron work shown on the specifications and by general drawings. He was to do all the digging, cesspools, trenches, closets, etc., as shown on the plans; also, all flagging with earth well rammed, soaked and made solid; to flag the sidewalks, and to make good pavement of adjoining premises, and to be responsible for accidents to individuals. Indeed, the contract in that respect is, that he is to be responsible for his own acts or those of any of his workmen from accidents to the buildings, to individuals or to the property of others, until the work should be fully completed and accepted. -Other persons were engaged as well by the owners to do certain parts of the work. One Dugan, who dug out the cellars, and a plumber named McCreery, seem to have had separate contracts affecting the locus in quo, and the question was, therefore, in limine, who was in possession of the premises at that time ? The testimony does not establish beyond doubt and beyond conflict therefore, which of the three persons named had possession or charge of the premises at the time the accident occurred ?

That they were all connected with the possession and charge of the premises, there can be no doubt. Whether the cellar digger, Dugan, had fully discharged his duties in reference to the cellar, at the time of the injury, was necessarily one of the questions presented by the evidence, for the reason that the planks spoken of, and which occasioned the injury to the plaintiff, were put in the place in which they were found by direction of the architect employed by the owner, who stated, amongst other things, that he made a contract with Dugan for the digging, and, also, that there were contracts with him as architect, one to excavate, another to do the mason and carpenter work and another to do the trenching in the sidewalk and get pipes into the house, and that work on these different departments progressed during the ■erection of the house. At different stages of the work, there were planks on the sidewalk. In the beginning when Dugan •came there, he had some planks on barrels, and he ordered them put on the sidewalks. He says the trenches made were open when the defendant was building one side; that one trench was running in the centre of the six houses; each two houses had a trench.

He further stated that the plumber came in at the same time that Dugan did; that Dugan owned the planks, but he was unable to say whether there were planks on the sidewalk on the 6th of October; and that he had charge of the sidewalk for the owners from the time he got the contract and was there every day. He further said that nothing was done by defendant on the sidewalk until frost set in after October 6th, when he ordered the sidewalk down and the defendant put down the flagging. The defendant had a watchman and no one else had, although he said he understood the plumber was to pay the watchman for being there.

This statement is quite sufficient to show that the question of possession was an important one, assuming the legal rule to be that the person in charge of the sidewalk under the contract with the owner was the person who was responsible. And this question becomes the more formidable with regard to the defendant in view of the provision in the contract that he was to be responsible for accidents in his department, for if in possession of the premises it was in his department, upon which subject the fact that he had a watchman there had an important bearing.

When the evidence was finished the defendants’ counsel renewed his motion to dismiss the complaint:

Fir at. Upon the ground of a total failure of proof to sustain the cause of action alleged in the complaint, or any cause of action.

Second. Upon the absence of any proof to show that the defendants or either of them interfered in any way with the sidewalk where the plaintiff fell, that they excavated it, or removed the flagging, or placed any boards on it.

Third. Because there is affirmative proof on behalf of the plaintiff that the defendants, and neither of them did do such things, but that the flagging was removed by somebody else before the ■defendants commenced their operations on the buildings.

Fourth. Because from the plaintiff's own testimony, if she was hurt at the time and place she stated, she has been guilty of contributory negligence.

The court granted the motion, to which ruling there was an exception. The plaintiff’s counsel asked to go the jury on the question of possession and charge of the premises. The motion ivas denied and exception was taken.

This was an erroneous ruling for the suggestion just made, namely, that that was really the important issue in the case. If an excavation is to be made, 'it is the duty of the person making it to see that it is properly and carefully covered so as to make the street as safe for passage as before, and the obligation to keep it safe devolves upon any person who subsequently continues it in an improper or unsafe condition, and notice of a defect which could be discovered by proper examination is not necessary in order to fix this liability. Irvine v. Wood, 51 N. Y., 224; Wolf v. Kilpatrick, 101 id., 146.

It follows from these authorities that if the other contractors had performed their different contracts and left the premises necessarily in the possession of the defendant whose contract was in force, the responsibility for the. safety of the public devolved upon him whether the planks were properly or improperly laid down in the first instance by Dugan or by the plumber.

It seems to be very clear therefore that the question of possession should have been submitted to the jury and that the dismissal of the complaint was erroneous.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Daniels, J.

I concur as to defendant John D. Karst, Jr.; no furtheh

Daniels, J.

The plaintiff encountered a fall, from which she sustained painful injuries, on the 6th of October, 1885, while walking along the sidewalk on the west side of Third avenue, north of Sixty-seventh street.

Buildings were then in process of erection by John D. Karst, Jr., under a contract with the owner of the property. This contract was made on the 17th of August, in the year 1885, for the erection and finishing of six buildings, which by the agreement were.to be finished by the 1st of January, 1886, and the work was to be commenced within five days after the execution of the contract, and the proof indicated that it was commenced within or about that time. But prior to the commencement of the erection of the buildings the flagging upon the sidewalk had been taken up by John T. Tripler, and after that Martin M. Dugan excavated the grounds for the buildings, and the removal of the earth and other material therefrom. Three trenches were also excavated across the sidewalk; each two of the six houses on the ground having one trench. They were of the depth of from seven to thirteen feet below the grade, and they were opened to put down sewers, gas and other pipes, and it was stated that they were dug by Mr. Dugan, which however, in his own evidence he denied to be the fact. When the pipes were laid the trenches were filled up, but the sidewalk was not restored to its former condition. It was covered with loose boards or plank, and these boards were stated to have been placed there by Dugan, which he himself denied having done, but that he laid planks over the driveway where he crossed to remove the earth from the excavations.

The plaintiff in walking along the sidewalk in the early part of the evening, but after it had become dark, by the tilting or moving of these boards, as the result of the uneven condition of the walk, was thrown down and seriously injured and it was for that injury this action was brought by her. And it was for the reason that the court considered the defendant John D. Karst, Jr., not responsible for this condition of the sidewalk that the complaint was finally dismissed.

But by the specifications which were made a part of his contract, he, as the mason to whom the erection of the buildings had been let, was obligated to do all the digging for the trenches, and there is accordingly reason for believing that in the opening and filling of the trenches the persons doing that were acting for him and under his authority. He was also required by the specifications to do all filling in, to be done with earth well rammed, soaked and made solid. And by a further part of the specifications, not only the trenches themselves and their filling in, but the laying of the sidewalks, were portions of the work to be done by him; and he was also bound at his own cost to provide all manner of materials, labor, etc., for the due performance of the work. And it could be inferred, as these were no parts of the contract with, or employment of Dugan, that what he or his men may have done, if they did anything, in the excavation of the trenches, filling them in and laying the boards, was for the defendant and in his employment, since this walk was included within the work to be done by him, and the boards or plank had been there for such a length of time prior to the accident as reasonably to have apprised him of their condition.

The facts were such, although they were controverted by other evidence, as would commit this as a proper subject for the consideration of the jury. Beyond that, he had a watchman employed to look after his work, as well as the materials upon the premises. Such a degree of probability was indicated as would leave the jury at liberty to conclude that he was responsible for this condition of the work; and if he was, they might very well find that it had been placed not only in an unsafe, but a careless and negligent condition.

The evidence of the plaintiff and of the policeman who had frequently observed the vicinity was sufficient also to justify the jury in believing that there was no fault on plaintiff’s part contributing to the accident. It is true that the evidence as to these facts is fragmentary in the extreme. It was presented in the most incoherent manner, and without any system which would enable the court or the jury to appreciate its force or effect. But the plaintiff should not be made the sufferer because of the irregular manner in which her interests or rights were presented upon the trial. The case, on the contrary, should have been submitted to the jury ; and the judgment, so far as it is in favor of the defendant John D. Karst, Jr., should be set aside and a new trial directed, with costs to the plaintiff to abide the event; but as to the other defendant, there was no evidence connecting him with the cause of the accident, the judgment in his favor should be affirmed.

Van Brunt, P. J.

(dissenting) I cannot concur in the result which has been arrived at by Mr. Justice Brady and concurred in by Mr. Justice Daniels in this case.

I fail to find any evidence whatever making these defendants at all responsible for the accident which occurred to the plaintiff. It is true that they were doing work upon the premises in question and that they had a watchman walking up and down in front of these buildings. But it is also true that there is not the slightest particle of evidence that these defendants had anything whatever to do with the excavation which was covered with plank upon which the plaintiff fell; and it is also, proved beyond all question that they were not in sole charge of the premises or that they had any charge thereof except so far as their own work was concerned;: that there were other and independent contractors and that some one or other of these contractors had made these trenches covered by the plank in question, over whose movements the defendant had no control and for whose wrong doing they were in noway responsible. I think that it is an entirely erroneous conclusion from the testimony to hold that there was any evidence from which a jury could find that these defendants were in charge of the premises in question.

It appears conclusively from the evidence that the defendants had nothing to do with these excavations; that their work on the sidewalk had not commenced and that others were doing work there or had been, in the course of which these excavations were made which were covered by plank probably belonging to the cellar digger.

Under these circumstances it is difficult to see how the defendants could be made responsible for the accident which happened. There is no evidence whatever that in connection with any of the work they were carrying on they were guilty of any negligence, and as has already been said there is no evidence that they were in charge of the premises so as to direct the movements-of the other contractors in reference to the work they were doing.

It seems to be held that because they had a watchman there (it does not appear for what purpose, but probably to protect their own material which they - were using) that therefore they were to be deemed in sole charge of the building and liable for the carelessness and negligence of the other contractors.

I have searched the evidence in vain for anything whatever connecting the defendants in any way, shape or manner with either the maintaining or the original digging out of the trench covered by this plank. If the defendants had assumed any duty in respect to this trench there might be another question, but there is no evidence whatever that they put the plank there. It is certain that they did not dig the trench, and simply because they had a watchman to look after their own interests they seem to-have been held for the negligence of other and independent contractors over whose movements they had no control.

I think the learned court below was correct in dismissing the-complaint as no cause of action whatever was made out against the defendants.

Judgment as to defendant John D. Karst, Jr., reversed and new trial ordered, with costs to appellant to abide the event, but as to the other defendant judgment, in his favor affirmed.  