
    Sadie M. Kelly, Resp’t, v. David Doody, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed November 26, 1889.)
    
    1. Negligence—Proper parties dependant.
    Defendant being a creditor of one Bush, who was completing a block of houses, was allowed by him to receive the rent of one to apply on his debt, and the tenants complaining that the water was not in, defendant obtained a promise from Warren, the plumbing contractor, that he would make the connection if defendant would find a laborer to dig the trench, which he did, and sent him to Warren, and the trench having been left uncovered, plaintiff fell in and was injured. Held, that the court erred in refusing to charge that “it was not enough to render the defendant liable * * to show that he desired or wished the work to be done, or that he was interested in having it done, or that Warren, the plumber, was moved to make the connection by_ the suggestion of defendant, but that it must ap pear that the person doing the work was the servant of defendant.”
    3. Same—Contributory negligence.
    The court charged that “plaintiff’s negligence was not in the case. If she had been negligent it would be no defense,” and ‘ ‘ that if it was mere inattention or negligence, that does not preclude her recovery.” Held, error; that this does not belong to the class of actions where the obstuction in a street is without authority and wholly wrongful.
    8. Same.
    The court further charged that “ the jury are not bound to conclude from the fact that Warren * * * took out a permit to make the connection; that he undertook to make it under his contract with Bush, if they can find in the evidence any other motive for taking out the permit.” Held, error.
    
      This action was brought in the city court of Brooklyn to recover damages which plaintiff alleges she sustained through the negligence of the defendant’s servants in digging a trench in the sidewalk on Seventeenth street in the city of Brooklyn and leaving the same without sufficient guard or warning, by reason of which the plaintiff on the 5th day of April, 1885, and without any fault or negligence upon her part, in passing along the sidewalk fell into the pit and was injured.
    The answer was a denial and allegations that the injury was due to her fault and negligence.
    Plaintiff recovered a verdict for $5,000 and the defendant appeals from the judgment of the general term of that court affirming a judgment in favor of the plaintiff upon the verdict and an order denying a motion for a new trial. The evidence upon the trial showed this state oi facts; that one Bush built a block consisting of five tenements and had contracted with one Warren to plumb the tenements and connect them with the water main in the street; that he had finished the plumbing and connections with three of the tenements under the contract and was proceeding with some degree of dilatoriness with the plumbing and making the water connections with the other two; that all that remained to be done to perform the entire contract was to make the connection between two of the houses and the main; that the cost of these connections would be about fifty dollars; that the plumber had' been paid but about one-half of the contract price and that Mr. Bush had made default in making payment in proportion to the progress of the work, the contract price was $625 and Bush had paid some $325, and was embarrassed and had mortgaged the block to secure his creditors or some of them; that Mr. Bush was also owing defendant’s firm for some of the materials in the block ; that the tenements or all save one were leased by Bush or his agent; that Bush had consented that the collector of the rents of the house into which the water was yet to be conducted might pay it over to the defendant’s firm upon the debt Bush owed them; that the tenant of that house complained that the water was not conducted into it and talked of leaving the house for that reason; that Bush’s collector communicated this to the defendant, and that the defendant replied he would see the owner of the block or the contractor upon the matter and see if it could not be remedied; that the defendant spoke to the contractor and inquired why he did not make the connection; that the excuse of the contractor was that his failure to do so was for want of laborers to dig the channel to receive the water pipe; that defendant asked him if he would do it if he would find a laborer for him to dig the trench, and the contractor promised he would then make the connection; that shortly after a laborer, Thomas Donovan, applied to defendant to drive the team of defendant’s firm in its business or to do some labor for the firm, and defendant informed him that the firm did not want his labor at the present time, but he thought he could have a job at digging if he went to the contractor; that he went to the contractor and the contractor sent one of his employees with Donovan to show where and how to dig the trench; that Donovan did the digging and afterwards reported it to the contractor, who sent him back to cover the hole he had dug; that Donovan claimed of the contractor for one and a half day’s labor in so doing; that the contractor did not deny his liability to pay, but did not until after the first trial pay him, and defendant never paid him, for the dig- ‘ ging; that some little time after doing the digging Donovan went to work for defendant’s firm, and was so employed when the first trial took place, but not when the last trial was had; that the contractor, Warren, applied to the authorities for a permit to tap and connect the block of tenements with the water main in the street; that such permit is necessary to do such work; that in May following the contractor reopened the hole and connected the water pipes. Mr. Bush spoke to Warren about finishing up in the summer after the accident, when he finally finished it up.
    The evidence upon which the liability of the defendant depends was given by the owner of the premises, the contractor for the plumbing, the laborer who made the excavation for the service pipe and the defendant.
    
      W. W. McFarland, for app’lt; Josiah T. Marean, for resp’t.
   Potter, J.

From the foregoing statement of the evidence it will be seen, that the plaintiff sought to establish a liability upon the part of the defendant for the damages she had sustained, by disregarding the real and ordinary relations between the parties h> this transaction and substituting others somewhat inconsistent. Bush had erected and was the owner of the block embracing five houses or tenements and as such had made a contract with one Warren to plumb and connect the same with the water main in the street to furnish the same with water, and Warren had obtained the proper permit of the authorities for that purpose and which I apprehend is usually granted to plumbers. The plumber had plumbed the houses and connected all of them with the main except two and had been paid upon the contract about one-half of the price agreed upon for the entire work.

The defendant was a creditor of the owner and by consent of the owner was receiving the rent of the tenements or of some of them to apply upon the debt due his firm from the owner.

The consent to receive and apply the rent was verbal and for no specified period of time. One Donovan dug the trench for the pipe to connect the main pipe into one of the houses. The excavation was not sufficiently covered during the interval of time, some ten days, between the digging and the filling of it and during that period the plaintiff, who resided in the tenement of the block next to the one to be connected with the main through the excavation, and who saw it dug and was well aware of its existence and condition, while passing after dark along the sidewalk across which the excavation had been made fell into it and sustained a very painful and permanent injury.

It is sought in this action, passing by the owner who had a permanent interest to be served and had contracted to pay for •the work, the contractor who agreed to do it, to furnish the material and had nearly completed it and had the permit, and the digger, who dug and left the excavation insufficiently protected to fix the liability for the injury and damages to the plaintiff, upon the defendant. The theory upon which it is sought to fix this liability upon the defendant is that he was the employer and principal of Donovan, who dug the trench, and, perhaps, also, of Warren, the plumber, and that having dug the trench, it was his duty to fill it, for the negligence causing the injury was in not replacing rather than removing the filling.

The evidence of the employment of the digger and of the plumber by defendant to put in the service pipe, is of very slight and unsatisfactory character, and is moreover quite inconsistent with the contractual relations existing between the owner of the buildings and the plumber. It became very manifest in the progress of the trial that this theory might not certainly fix the liability upon the defendant, and so resort was had to another, which, while it resembles the master and servant theory, is much attenuated, seems to me to be somewhat extraordinary in this class of cases, and that is this, in the language of the learned judge’s charge, “ if Doody, for his own interest, in order that he might realize rent, desired that Warren should make the connections, and if that desire was communicated by him to Warren, with the intention to set Warren in motion to make it, that is, make the connection, the mere form of words used is not material, and if that communication of his desire, together with his active agency in finding and sending a man to do the digging; if that, and not the obligation of the contract with Bush, was the sole effective, procuring cause which moved Warren to dig the hole, or to set Donovan to dig it, then Doody was the responsible author of the hole. I will stop here a moment. If this communication of his desire and his active agency in sending a man was not the promoting cause, but the contract with Bush; if Warren did it because he had a contract with Bush to do it, and that was what moved him to do it, then Mr. Doody would not be responsible. You understand, I think, but I call your attention specially to that. Then the counsel proceeds with his proposition: And if, in that case, Doody knew, or had good reason to believe, that the hole had been dug, it was his duty to see that it was filled up at furtherest within twenty-four hours after such notice, or it became a public nuisance, of which he was the responsible author or maintainer, and liable for the consequences to the plaintiff.’ That is a a proposition of law which I will submit to you, and you are to .apply it to the facts, whether this was caused in the way contemplated by that question or some other.’’

It is not necessary, in the result I have reached, to analyze this theory of the charge or to apply it to the evidence in this case; or to decide that it was erroneous in law; but I am qnite sure it will impress every experienced trial judge who is conversant with the proneness of human nature, whether inside or outside of the jury box, to sympathize with the sufferings of another and to bestow "benefits upon them, if not out of their own, then out of another’s pocket, and if out of another’s then out of that one who is most able, though perhaps the least liable, to pay it. But I am satisfied that there were, in the working out of the plaintiff’s theories, several fatal errors committed, both in the charge and the rulings upon the evidence, and to which exceptions were duly taken.

The court, upon the request of plaintiff, charged that “plaintiff's negligence was not in the case. If she had been negligent it would be no defense.” This was error. The complaint charged the defendant with negligence through his servant in making and maintaining this hole, and that plaintiff, without fault on her part, fell into it. Moreover the action does not belong to that class of .actions where the obstruction in a street is without authority and wholly wrongful, such as the case of Clifford v. Dam, 81 N. Y., 52, and the cases there cited.

In this case the excavation was permitted by the public authorities, and the party making or maintaining the obstruction only becomes liable for his negligence in the use of the privilege. The pleadings show that this action is based upon and involves the care and negligence of both parties to the action. Besides evidence was given by the plaintiff herself that she saw the man at work digging the trench and saw the trench daily or nearly so and had safely passed over the trench only an hour or two before, but that her attention was diverted from it, on the occasion of the accident, by a card in the window of a house near the excavation.

The same error or kind of error occurred when the court charged the jury “that if it was mere inattention or negligence, that does not preclude her recovery.”

The charge, in many respects, if not positively erroneous, was entirely misleading to the jury in a case of this character. “ The jury are not bound to conclude from the fact that Warren, on February 9, 1885, took out a permit to make this connection, that he intended to make it under his contract with BuSh, if they can find.in the evidence any other motive for taking out the permit.”

What other motive could, from the evidence in the case, have been operating upon the mind of Warren to take out the permit other than the contract for the plumbing with Bush, the owner, unless plumbers in the city of Brooklyn are in the habit of taking out and paying some thirty-five dollars for a permit for houses generally that have not been connected with the water service and trusting to the chance of getting a contract later on for the plumbing. The tendency, if not the object, of the remark was to remove the force of the fact that Warren was bound by the contract with Bush, for at the date of the permit there is no evidence that defendant ever saw Warren.

The charge was also erroneous, or misleading, “whether the tenant in this tenement was the tenant of Doody or of Bush. The material question is, whether Doody had an interest to serve in getting the connection made, about which the parties agree, since he was entitled to rent of the house.”

The court was balancing the interest of Bush, the owner, and who had concededly made a contract with Warren to plumb the house, against that of defendant, who had no legal right to the rent that he could enforce, and to lead the jury to think that defendant might have made such a contract.

It was error to refuse defendant’s request to charge “that it is not enough to render the defendant liable for the injury in question to show that he desired or wished the work to be done, or that he was interested in having it done, or that Warren, the plumber, was moved to make the connection by the suggestion of the defendant, but it must appear that the person doing the work was the servant of the defendant.”

It was error to refuse the defendant’s request “ to render the defendant liable for the act of Warren in opening the street, it must appear that in doing so he was the agent or servant of the defendant, was in his employ, and subject to his direction and control,” and the charge made, instead of that requested, was, if not erroneous, misleading to the jury.

The modified charge suggests that the defendant might have moved Warren, as the contractor with Bush, to make the excavation ; that is to do what he had agreed with Bush to do. Now I apprehend that Bush himself would not be liable for the improper-manner in which Warren, his independent contractor, might do-the work. Much less would the defendant be liable for the manner in which the independent contractor of Bush should perform his contract with Bush, either to Bush, or anyone else.

The case as presented by the charge is liable to lead the jury to think that Donovan was the defendant’s servant in digging the hole, but if not, then Warren was the defendant’s servant,, although Warren had a contract with Bush to do the entire job,, including the digging of the hole, and which contract was at the time in force, so far as the evidence discloses.

The defendant sought, in order to meet these theories of the plaintiff, to show by Donovan that he did not employ or direct Donovan in regard to digging the trench, to ask Donovan who did employ him to dig the hole, and by his own testimony, that he did not employ or direct Donovan in that regard or say anything to anybody about opening the street, and by Warren that when he set Donovan to work digging, he was acting under the Bush contract or whether he, Warren, had any contract with any other than Bush to connect the water main with tho house. All these questions were objected to by plaintiff and overruled. Some of them at least were, it seems to me, improperly overruled within the principle decided in Knapp v. Smith,, 27 N. Y., 277-281. In that case it was held, Judge Denio writing the opinion of the court, that overruling this question “for whom did your husband do what business he did after you took the deed, etc.,” was error. In Sweet v. Tuttle, 14 N. Y., 465-472, it was held, Judge Comstock writing the opinion of the-court, that this question “ on the part and behalf and for whom did the defendant do what he did that fall in relation to the-wreck of the Phoenix ?” was proper. Clearly within these decisions it was competent for Warren to testify that the digging was done under the Bush contract, and that Warren had no contract with any other than Bush when it was done.

I think the judgment should be reversed, and a new trial granted, costs to abide the event.

All concur, except Haight, J., not sitting.  