
    (6 Misc. Rep. 339.)
    MALTBIE v. BOLTING et al.
    (Superior Court of New York City, General Term.
    December 29, 1893.)
    
      1. Negligence—Acts of Contractor—Work not Inherently Dangerous.
    The work of makitig the cellar in a building waterproof is not inherently dangerous because it is necessary to use the coal holes in the pavement for the purpose of ventilation and for the introduction of materials, and the owner is not liable for the negligence of the contractor in using a coal hole.
    
      2. Same—Duty of Owner to Keep Sidewalk Clear.
    Where repairs are being made on a building by a contractor, the owner is not obliged to see that the contractor does not wrongfully obstruct the sidewalk.
    8. Nuisance—Obstruction of Sidewalk.
    Putting a barrel in a coal hole in a sidewalk as a guard while using the coal hole is not a nuisance per se, though it obstructs the sidewalk, and, in an action for injuries caused by falling over the barrel, negligence of defendant must be proven.
    Appeal from jury term.
    Action by Fanny Maltbie against Francis Bolting and others. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.
    Reversed.
    Argued before FREEDMAN, McADAM, and GILDERSLEEVE, JJ.
    H. C. Kudlich, (Austin G. Fox, of counsel,) for appellant Bolting.
    John L. Hill and Geo. W. Poucher, for appellants Vaughan and the Moen’s Asphaltic Cement Co.
    Robt. P. Getty, Jr., and C. F. Moody, for respondent.
   McADAM, J.

The action was to recover $20,000 for personal injuries to the plaintiff by reason of alleged wrongful and negligent acts of the defendants. It appears that on June 12, 1889, the plaintiff, while passing upon the southerly side of Liberty street, in this city, on her way from the ferry of the New Jersey Central Railroad, at the foot of that street, struck her left knee against a barrel, “or something of that kind,” and fell over it. The barrel had no head on it and was placed in an open coal hole in the sidewalk, and anchored firmly in position by placing a stick entirely across the top of the barrel, to which was attached a rope, running down, and fastened below by heavy weights. The property belonged to the defendant Bolting, is situated at the southeasterly corner of Liberty and Washington streets, and known by the street numbers, “136 and, 136½ Liberty Street.” The cellar of the building became filthy, and was declared a nuisance by the board of health, which body directed Bolting, as the owner of the premises, to put in a waterproof" cellar. Bolting thereupon made a contract with the Moen’s Asphaltic Cement Company to carry out the order of the health board. The job was commenced May 4, 1889, and was completed June 25, 1889, —thirteen days after the accident happened. The performance of the work required the excavation of the cellar and vault bottoms so as to permit a new concrete bottom, 16 incites thick; the removal of partitions, and a quantity of debris; also, the introduction of building material, bricks, sand, cement for concrete work, and asphalt liquified by heat for laying the brickwork, which was to exclude the water which pressed into the cellar by the rising tides. This, in turn, involved the use of furnaces, boilers, etc., for heating the asphalt, the smoke and fumes from which are of a character that cannot be endured in closely-confined apartments. Ventilation was therefore required, not only for the safety of the workmen, but for the successful application of the cement. The company made temporary use of the coal holes for. the purposes of ventilation and introduction of building material while performing their contract, taking the precaution of endeavoring to secure the public from danger by introducing empty, but heavy, cement barrels in the opening, extending up sufficiently high to give warning to pedestrians, and prevent them from falling in. The plaintiff struck her left knee against one of the barrels, fell, and sustained injuries of so serious a character that, after much pain and suffering, amputation of the left leg, just above the knee, being found necessary, was performed, to save life. The plaintiff brought the action against the owners and contractors jointly, charging them with responsibility for the injury on the allegation that:

“They wrongfully and negligently removed the covering from the coal hole, * * * and wrongfully suffered and permitted the said coal hole to remain open, and wrongfully and negligently placed a tub, keg, or barrel, or something resembling a barrel, in the said coal hole, the same standing or protruding a short distance above the sidewalk, and there wrongfully and negligently kept and maintained the same.”

The answer of the cement company was, substantially, a general denial, while the defendant Bolting, the owner, pleaded in addition thereto the contractual relations existing between him and the cement company, whereby it agreed to do all the work required, not as the servant of the owner, but as an independent contractor, without any supervision, care, charge, or control on the part of the owner. The jury rendered a verdict against all the defendants for $17,500 damages. Without considering the arguments urged against the amount 'of the verdict, which, for present purposes, may be assumed to be proper, we are confronted by legal objections of a serious character, which strike at the plaintiff’s right to any recovery, on the proofs offered, in the form in which they went to the jury for determination.

While it is undoubtedly true, as a rule, that the public are entitled to an unobstructed passage upon the streets, including the sidewalks, of the city, and that any person, by unlawfully placing ■obstructions thereon, may make himself liable as for creating or maintaining a nuisance, it is also true that any temporary use of a highway or street that is rendered absolutely necessary from the necessities of trade, commerce, or the erection of buildings, that does not unnecessarily or unreasonably obstruct the same, is lawful, and not the foundation of such an action. Wood, Nuis. § 258; Com. v. Passmore, 1 Serg. & R. 219; People v. Cunningham, 1 Denio, 524; People v. Horton, 64 N. Y. 610; Welsh v. Wilson, 101 N. Y. 254, 4 N. E. 633; Callanan v. Gilman, 107 N. Y. 360, 14 N. E. 264. The temporary use of coal holes, if required by the exigencies of trying situations, does not, if sufficiently guarded, constitute, under all circumstances, a nuisance per se. To make it a nuisance, in that sense, it is necessary to prove that the use was unusual, unnecessary, or unreasonable, or that the manner of use was inherently dangerous, and that the rights and safety of the public had not been sufficiently respected. See City of Allegheny v. Zimmerman, 95 Pa. St. 287. The board of health had ordered the work to be done, and, if the owner had not caused it to be done in the manner he did, the board of health could and probably would have had it performed at his expense. It was not work inherently dangerous, if properly conducted. The acts to be performed were legal, and not, therefore, within the special rule which holds that, where work authorized by an owner will necessarily produce an injury to the public, he cannot, by contract with another, free himself from the consequences of the act; in other words, that where the very act is wrongful, as against the plaintiff, the defendant cannot shield himself from the consequences by making a contract with another to do the wrong for him. Brennan v. Schreiner, (Super. N. Y.) 20 N. Y. Supp. 130. The case more properly falls under the more familiar rule of respondeat superior, which lets the master in charge of the work assume all the responsibilities connected with it, or the manner of doing it. The cement company was an independent contractor, under this rule; and the principle is settled that:

“When the owner of land contracts with a builder to erect thereon a building according to certain plans and specifications, the latter to furnish all materials and labor, and to be answerable to the owner only for certain results, he will not be deemed the servant of the owner, although the work is to be done under the supervision of an architect selected by the owner.” Thomp. Neg. 909, 910.

The same learned author says:

“The rule is of especial force where the owner, in pursuance of such a contract, commits the entire care and control of the premises to the contractor. Here, the owner will not be liable for an injury to a traveler in consequence of an excavation in the street being left unguarded.” Id. 910.

Entire care and control were given to the contractor in this instance, and the owner.had neither architect nor superintendent to exercise supervision, and required the presence of neither. There was nothing, either in the terms of the contract or in the nature of the work to be done, that made the owner liable for the consequences of the acts of the contractor in placing or continuing the obstruction upon the sidewalk. Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755; Herrington v. Village of Lansingburgh, 110 N. Y. 145, 17 N. E. 728; Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052; Ferguson v. Hubbell, 97 N. Y. 507; McCafferty v. Railroad Co., 61 N. Y. 178; French v. Vix, 2 Misc. Rep. 312, 21 N. Y. Supp. 1016; Martin v. Tribune, 30 Hun, 391; Sulzbacher v. Dickie, 6 Daly, 471; Charlock v. Freel, 125 N. Y. 357, 26 N. E. 262.

The supreme court of the United States, in Robbins v. Chicago City, 4 Wall., at page 679, recognized the distinction before suggested, in these words:

“Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workman, the rule is that the-employer is not liable; but, where the obstruction or defect results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor, and authorizes him to do those acts, is equally liable to the injured party.”

See, also, Water Co. v. Ware, 16 Wall., at page 578; Gourdier v. Cormack, 2 E. D. Smith, 254; Milford v. Holbrook, 9 Allen, 21. The obstruction or defect complained of was clearly collateral to the work contracted for, and the case was thus brought within the rule laid down in the authorities cited, which exempts the owner from liability.

The most that can be said against the owner is that he expected! the contractor might possibly use the coal hole for tailing in material. 27o injury resulted from any such cause, but from one entirely separate and distinct. The removal of the coal cover, and the putting in of a barrel by the contractor, was something with which the owner had nothing whatever to do. These acts were performed without any direction from him, and they were not continued by any agency of his. The liability of an owner for injuries sustained by reason of the presence of coal holes on the sidewalk need not, for the same reason, be seriously considered, for-the mere fact that coal holes were there was not the proximate- or responsible cause of the injury of which the plaintiff complains. The trial judge charged the jury that the owner “was bound to-have his premises under such reasonable control, so that it would; disclose whether anybody was attempting, against his wishes, to-put a nuisance on the sidewalk.” The owner lived in Rockland county, and was under no obligation to make visits to 27ew York to* protect his sidewalk against obstructions placed upon it by persons without his permission, nor was he obliged to employ agents,, either for that purpose, or to prevent trespasses. 27or is the owner of real estate bound, at his peril, to stand by, and see to it that a contractor whom he employs to do a lawful act does not, for the-convenience of himself or his employes, commit wrongful or negligent acts while performing his.duty. In referring to the obligation of a landlord to whom the same rule had been applied, it has been judicially said:

“That can only be true on the theory that every owner of rented property in New York is bound to watch the sidewalks, and protect them against unauthorized trespasses, and is bound to know when such a trespass is committed. We are aware of no case that goes so far as that.” Wolf v. Kilpatrick, 101 N. Y. 146, at page 151, 4 N. E. 188, at page 190; Babbage v. Powers, 130 N. Y. 281, 29 N. E. 132.

The trial judge, by this direction, imposed on the owner a stricter rule than the law required. Yo case fastening a legal liability on the owner, as such, was made out, and the motion to dismiss the complaint, as to him, should have been granted.

As to the contractors, different questions arise. They did the very acts of which the plaintiff complains, and if they were done wrongfully and negligently, as she charges, or if they were performed without proper regard to the rights of the public, on the sidewalk, they may have incurred a liability. Upon this point, the trial judge charged the jury:

“In such an action as the present, the plaintiff is only bound to prove the existence of the obstruction upon the sidewalk, that the defendants are responsible for its being there, and that she was injured thereby. * * * It is not necessary for the plaintiff to prove negligence.”

The court made this charge upon the theory that the obstruction was a nuisance per se, without regard to the peculiar circumstances under which it was placed there, nor the exigencies which gave rise to its being there, nor the length of time the obstruction continued, all of which were elements which should have gone to the jury as questions of fact to be determined by them before that conclusion could be reached as one of law. Certain qualifications were made in the charge, but not sufficient to free it from error. The complaint states a cause of action arising purely from acts of negligence, not from the erection or maintenance of a nuisance, and a recovery under such a plea cannot always be sustained on the theory that the proof showed a different ground of liability,—in this case, nuisance. Martin v. Pettit, 117 N. Y. 118, 22 N. E. 566; Reed v. McConnell, 133 N. Y. 425, 434, 31 N. E 22; Romeyn v. Sickles, 108 N. Y. 650, 15 N. E. 698; Southwick v. Bank, 84 N. Y. 420, 428; Woolsey v. Trustees, etc., 69 Hun, 489, 494, 23 N. Y. Supp. 410.

There was testimony given at the trial by several witnesses familiar with such matters that the method of protecting coal holes adopted by the cement company while doing the work has always been found safe, and that this was the first accident ever heard of, where a barrel has been used in this way. This evidence was material on the subject of exercise of proper care, but was rendered nugatory by the charge “that it was not necessary to prove negligence;” for if the contractors were liable, independently of the presence of care or absence of it, then this testimony could have exercised no influence whatever upon the jury, who were, in effect, told that they might disregard it. The testimony of these witnesses, with, proof of the peculiar circumstances, the exigencies of the occasion, the length of time the obstruction continued, and the like, were, in our judgment, elements going to show that the obstruction was not a nuisance per se, but a use of the sidewalk by necessity, for the purpose of complying with a lawful order of a board created by legislative enactment, and were proper subjects for consideration by the jury to aid in determining whether the use was a proper one, or whether it was what the court, in advance of such -determination, assumed it to be, to wit, an unauthorized interference, amounting in law to a nuisance. The requirements of trade, commerce, and of building have to be recognized, and public rights must sometimes yield to temporary inconveniences arising from them, (see Booth v. Railroad Co., 140 N. Y., at page 276, 35 N. E. 592,) as a pedestrian must when the thoroughfare is crowded by other pedestrians, who have equal rights thereon with himself. In determining whether excavations on the sidewalk; bridges over the walk; derricks placed on the walk, or overhanging it; obstructions made necessary by building operations; skids over the walk, and carts backed thereon, for the loading or unloading of merchandise to and from warehouses,—are nuisances, all the concomitants must be considered, as characterizing, explaining, and perhaps justifying or excusing, the act. When the matter is regulated by ordinance, and a permit is required to justify a permanent or even a temporary interference with the highway, these matters are proper subjects for investigation and proof. In the present instance the lines of liability were too tightly drawn, and more rigid obligations enforced against the defendants than the law justifies.

The view stated renders it unnecessary to consider the other exceptions taken. For the reasons already expressed, the judgment and order appealed from must be reversed as to all the defendants, with costs to appellants, to abide the event, and a new trial ordered. All concur.  