
    Jean G. McDonald, as Administratrix of the Estate of Daniel McDonald, Deceased, Respondent, v. Shell Oil Company, Defendant; William J. Manion et al., Appellants, and Joyce Cridland Company, Respondent.
    Argued. April 19, 1967;
    decided June 15, 1967.
    
      
      Salem G. Mansour and Benjamin N. Hewitt for Charles R. Smith, doing business as Smith Shell Service, appellant.
    
      I. As a matter of law, the sole, efficient cause of the accident herein was the latent, undetectible defect in the new valve installed by codefendant Manion, which was not a foreseeable risk of any of the acts or omissions submitted to the jury as a basis of liability against appellant Smith. (Sosa v. Metropolitan Life Ins. Co., 18 A D 2d 628; Stelzner v. First Ave. Corp., 15 A D 2d 741; Weinfeld v. Kaplan, 282 N. Y. 348; Cook v. Great Atlantic & Pacific Tea Co., 244 App. Div. 63, 268 N. Y. 599; Hittner v. Turbine Equip. Co., 18 A D 2d 65; United Press v. New York Press Co., 35 App. Div. 444; O’Neill v. New York, O. & W. Ry. Co., 115 N. Y. 579; Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425; Cartee v. Saks Fifth Ave., 277 App. Div. 606, 303 N. Y. 832; Gralton v. Oliver, 277 App. Div. 449, 302 N. Y. 864; Bolsenbroek v. Tully, 12 A D 2d 376, 10 N Y 2d 960; Gattner v. Coliseum Exhibition Corp., 17 A D 2d 44, 12 N Y 2d 933; Williams v. State of New York, 308 N. Y. 548; Payne v. City of New York, 277 N. Y. 393; Lane v. City of Buffalo, 232 App. Div. 334; Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339; English v. Merroads Realty Corp., 288 N. Y. 93.) II. The verdict against defendant Smith, in any event, cannot stand because the court submitted to the jury grounds for liability in negligence which were wholly irrelevant and immaterial to the occurrence causing the accident, and without basis in the evidence and contrary to the law of the case. (O’Connor v. 595 Realty Assoc., 23 A D 2d 69; Bologna v. Battisto, 36 Misc 2d 297; Whispell v. Socony Mobil Oil Co., 12 A D 2d 545; Engel v. Eureka Club, 137 N. Y. 100; Finkle v. Zimmerman, 26 A D 2d 179; Thomas v. Central Greyhound Lines, 6 A D 2d 649.)
    
      Paul H. Reid, Jr., and Joseph Conway for William J. Manion, appellant.
    I. The court erred "in submitting to the jury Manion’s liability for creating the defect after having dismissed plaintiff’s complaint as a matter of law as against the manufacturer, the Joyce Cridland Company. (Foltis, Inc. v. City of New York, 287 N. Y. 108; Schroeder v. City & County Sav. Bank, 293 N. Y. 370; Corcoran v. Banner Super Market, 20 A D 2d 552.) II. It was improper to submit the issue of failure to protect an inherently dangerous condition after dismissal of the complaint as to Shell Oil Company.. III. The court erred, in dismissing as a matter of law the cross claim of Manion against the Joyce Cridland Company.
    
      
      George M. Donohue and James Milne for Jean G. McDonald, respondent.
    I. Inasmuch as neither appellant Smith Shell Service nor appellant Manion excepted to the charge of the court, that charge became the law of the case and cannot be questioned in this court. (Mravlja v. Hoke, 22 A D 2d 848, 17 N Y 2d 822; Lankes v. Loyal Order of Moose, 12 A D 2d 1001, 10 N Y 2d 947; Olsen v. Chase Manhattan Bank, 9 N Y 2d 829; Schlansky v. Augustus V. Riegel, Inc., 9 N Y 2d 493; Fields v. City of New York, 4 N Y 2d 334; Kluttz v. Citron, 2 N Y 2d 379; Brown v. Du Frey, 1 N Y 2d 190; Forte v. City of Albany, 279 N. Y. 416; Walldorf v. Central Greyhound Lines of N. Y., 280 N. Y. 725; Halpin v. New York Rys. Corp., 276 N. Y. 545; Pettis v. New York State Elec. & Gas Corp., 275 N. Y. 507; Berner v. Board of Educ., Union Free School Dist. No. 1, 286 N. Y. 174; Buckin v. Long Is. Ry. Co., 286 N. Y. 146; Donohue v. Erie County Sav. Bank, 285 N. Y. 24; Sherry v. Pennsylvania R. R. Co., 248 App. Div. 439.) II. The dismissal by the trial court of respondent’s complaint against the Shell Oil Company did not prejudice appellant Smith Shell Service. III. The dismissal by the trial court of respondent’s complaint against the Shell 011 Company did not prejudice appellant Manion. IV. Appellant Manion was not prejudiced by the dismissal of respondent’s complaint against Joyce Cridland Company because Manion’s liability was established by abundant proof. (Foltis, Inc. v. City of New York, 287 N. Y. 108; Schroeder v. City & County Sav. Bank, 293 N. Y. 370; Corcoran v. Banner Super Market, 20 A D 2d 552.) V. The issue of Smith Shell Service’s active negligence was properly one for the jury and that issue was submitted to them under a proper charge. VI. The work being done by Manion was inherently dangerous and made even more so by the insistence of Smith that members of the general public be admitted in close proximity to the scene. (Besner v. Central Trust Co., 230 N. Y. 357; Schultz & Lindsay Constr. Co. v. Erickson, 352 F. 2d 425; Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Wright v. Tudor City Twelfth Unit, 276 N. Y. 303; Boylhart v. Di Marco & Reimann, 270 N. Y. 217; Janice v. State of New York, 201 Misc. 915; Bologna v. Battisto, 36 Misc 2d 297; Whispell v. Socony Mobil Oil Co., 12 A D 2d 545; Whitney v. City of New York, 49 Misc 2d 901.) VII. The relationship between Smith Shell Service and Manion was that of occupant and independent contractor, thus making Smith Shell Service vicariously responsible for the negligence of Manion. VIII. The proximate cause of the fatal accident was in sharp dispute, thus making it an issue of fact for determination by the jury and not a question of law. (Gralton v. Oliver, 277 App. Div. 449, 302 N. Y. 864; Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339.) IX. Respondent is not concluded by the testimony of either Manion or Charles Smith since that testimony was mutually contradictory. (Becker v. Koch, 104 N. Y. 394; Wendell v. Leo, 195 N. Y. 76; Carlisle v. Norris, 215 N. Y. 400; Potts v. Pardee, 220 N. Y. 431; Pastene & Co. v. Irving Nat. Bank, 249 N. Y. 272.)
    
      James W. Mallam for Joyce Cridland Company, respondent.
    I. Plaintiff’s argument as against Joyce Cridland Company is entirely speculative and conjectural. II. The evidence failed to show any negligence on the part of Joyce Cridland Company. (New York State Elec. & Gas Corp. v. J.C.A. Truck Leasing, 24 A D 2d 1061.) III. The doctrine of res ipso loquitur has no application to this appeal. (Fromkin v. Merrall Realty, 15 A D 2d 919; Kalin v. Robert Catino, Inc., 20 A D 2d 549; Deso v. London & Lancashire Ind. Co., 3 N Y 2d 127; Schlansky v. Augustus V. Riegel, Inc., 9 N Y 2d 493; Olsen v. Chase Manhattan Bank, 9 N Y 2d 829; Kluttz v. Citron, 2 N Y 2d 379; Foltis, Inc. v. City of New York, 287 N. Y. 108; Schroeder v. City & County Sav. Bank, 293 N. Y. 370; Corcoran v. Banner Super Market, 20 A D 2d 552; Markel v. Spencer, 5 A D 2d 400, 5 N Y 2d 958; Cole v. Swagler, 308 N. Y. 325; Galbraith v. Busch, 267 N. Y. 230; Zaninovich v. American Airlines, 26 A D 2d 155.)
   Keating, J.

Daniel McDonald was killed, while waiting for his car at a Shell Oil Service Station. The station was owned by the Shell Oil Company and leased to Smith Shell Service, operated by one Charles R. Smith. Smith had requested Shell Oil to install a hydraulic lift in one of its two bays. There was an existing lift device in the other service bay. Shell purchased the equipment from the manufacturer, Joyce Cridland Company, and hired a competent independent contractor, William J. Manion, to install the lift.

Smith’s service bay was equipped with an air compressor from which a line furnished air to the old lift. On the morning of the accident, Manion and his helper came to Smith’s station and connected the control valve for the new lift. While this connection was being made, Manion turned off the compressor. When this portion of the work was completed, Manion left the premises for the day at about eleven o’clock in the morning. He had asked Smith not to turn on the compressor or use the old lift while he was actually working on installing the new lift. He fully expected Smith to use the old lift at other times and stated that such use would make no difference to him.

Accordingly, Smith’s employees turned on the compressor to use the old lift. As subsequent laboratory tests revealed, there was a leak in the valve connected to the new lift which allowed the air to go into the new lift, although the valve was in the “ off ” or neutral position. Thus, the new lift rose. The chain holding it in place broke, and a fragment struck the plaintiff’s intestate.

Judgment was recovered against both Smith and Manion in the amount of $116,000.

We conclude that the evidence was insufficient to support the verdict against the defendant Smith. The plaintiff did not rely on res ipso loquitur but attempted to show specific acts of negligence. The record shows that Smith had had nothing to do with the purchase or installation of the equipment. It is likewise clear that Smith did not, in any way, produce the minute leak in the valve which caused the accident.

It has been suggested that the work which was being done by Manion was so inherently dangerous as to warrant the imposition of strict liability upon Smith. This is unsupported by the record. No claim has been made that the installation of the new lift was likely to be “peculiarly dangerous”. (See Prosser, Torts [3d ed.], § 70, p. 484.) From all that appears in the record, it is clear that, but for the minute, unusual leak in the valve, the accident would not have happened.

Manion himself testified that he knew of no reason why the old lift could not be used while he was not actually working on the installation of the new lift. Smith was entitled to rely on Manion in this respect. This was not a case involving a specific danger apparent to anyone, which in fact did occur, as was the case in Rohlfs v. Weil (271 N. Y. 444) cited in the dissent. In this case a lessee permitted the erection of scaffolding outside his premises and above a public sidewalk by an independent contractor employed by a sublessee sign advertiser. The court noted that “No barricades or danger signals were posted on the sidewalk or elsewhere to warn pedestrians of the presence of this scaffold suspended over them.” (Rohlfs v. Weil, supra, p. 447.)

In holding the lessee of the premises liable, despite his delegation of the work to an independent contractor, the court emphasized (p. 448) that “the consequences were apparent if any portion of this scaffold should fall.”

The rule with respect to ‘ inherently dangerous ’ ’ work is an exception to the general rule that an employer is not liable for the torts of his independent contractor (Prosser, Torts [3d ed.], § 70, p. 484). This exception is properly applicable to cases such as Rohlfs v. Weil (supra) where the danger is readily apparent and the accident foreseeable. (See Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339.)

Since the work was not apparently dangerous, Smith was entitled to rely on the judgment of Manion, a competent contractor, who had left no instructions that customers should not be let in, or that the compressor operating the old lift could not be turned on.

Accordingly, we find no basis for supporting the judgment against Smith.

There is basis in the' record, however, for imposing liability upon Manion. At the trial, it was shown that there was a defect in the valve which permitted the air to leak into the new lift. The defect consisted of a sliver of low carbon steel, found in the valve when it was subsequently tested. The valve itself was made of stainless steel but the pipes to which the valve had been attached were made of low carbon steel, like the sliver. Manion testified that, on the morning of the accident, he cut the pipes before attaching them and that this produced shavings or turnings, metallic in nature.

From this evidence, the jury could infer that the sliver in the valve was caused by Manion. The sliver had to come from somewhere. Since it was not of the same substance (stainless steel) as the valve, there appears a sufficient basis for inferring that Manion caused it.

Since such a defect in the valve would clearly energize the new lift, causing the chain to break, no foreseeability problem is present. For these reasons, we would affirm as to Manion.

We also affirm the dismissal of Manion’s cross claim against Joyce Cridland Company, the manufacturer of the valve. It would be improper to infer on any theory that the sliver of material — foreign to the metal of the valve, but identical to that supplied by Manion — was in the valve before Manion received it.

Accordingly, the order appealed from should be modified so as to provide for dismissal of the complaint against Smith, with costs to defendant Smith against the plaintiff, and, as so modified, affirmed, with costs to the plaintiff and the defendant, Joyce Cridland Company, against Manion.

Breitel, J.

(dissenting in part). Decedent, a business invitee, sustained fatal injuries when a service station car lift, in process of installation, rose and snapped a restraining chain which struck decedent. The lift rose because of an air leak in a defective air valve serving only the new lift to be installed. In order to use an old lift the employee- of the service station, after checking with his superior, had turned on the air compressor which served both lifts. The air compressor in serving the old lift fed air also to the new lift through the defective air valve causing it to rise and snap the restraining chain.

The issue upon which there is disagreement in the court is whether the verdict and judgment against the service station owner should be affirmed. There is no disagreement with respect to the other defendant thus far held liable to plaintiff administratrix.

The service station owner was properly held liable for two reasons. The first is based upon evidence of negligence and the second is based upon the owner’s responsibility to third parties for negligent performance on its premises of work of an inherently or intrinsically dangerous character.

On the first ground: The lift installer, defendant Manion, testified that the air compressor was turned off by him a few hours before the accident because he and his men were working on linking up the two lifts, the old and the new, to the common air source. Leaving the premises temporarily, he tied a rope around the defective air valve to indicate that it was not to be used. He also testified that the day before and again on the morning of the accident he had told the service station people that the- old lift could not be used as he was interrupting the air supply. The service station employee testified that he sought to use the old lift and that he would not turn on the air compressor when he found it in the ‘ ‘ off ” position until his superior first told him to do so. This sufficed to create an issue of fact whether the service station people had been told not to use the air compressor (as distinguished from the tied air valve), and, therefore, the old lift, that day, and that its employees so understood the instructions. The jury, of course, by its general verdict resolved that issue in favor of plaintiff administratrix.

On the second ground: There was testimony that the installation -of a car lift involved various dangers in connection with which detailed safety instructions were issued by the. manufacturer and were available to the contractor. The trial court submitted to the jury the issue as one of fact whether the work was inherently or intrinsically dangerous, in which event the service station owner would be liable for the negligence of Manion, the independent contractor, who was installing the new lift.

Restatement, Torts, Second, states the rule applicable to the vicarious liability of an owner for work done by an independent contractor involving special dangers: ‘ ‘ One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for-physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.” (§427.)

The rule to be applicable does not require that the work be “highly dangerous ” (Comment c), and is not to be confused with the rule applicable to work involving ‘ ‘ abnormally dangerous activity” (id. at § 427A). (To similar effect, see Prosser, Torts [3d ed.], § 70, pp. 484-486; 27 Am. Jur., Independent Contractors, § 39; 57 C. J. S., Master and Servant, § 590, subd. b.) The law of New York is the same; see Besner v. Central Trust Co. (230 N. Y. 357, 362), involving the replacement of doors on a freight elevator while the elevator was, at the owner’s request, kept in use; Rohlfs v. Weil (271 N. Y. 444, 448), involving insecurely fastened scaffolding which fell (28 N. Y. Jur., Independent Contractors, § 25).

The issue is generally one of fact to be determined by the fact-finder (Wright v. Tudor City Twelfth Unit, 276 N. Y. 303, 307; Krauthamer v. 443-4th Ave. Corp., 2 A D 2d 699; cf. Schwarts v. Merola Bros. Constr. Corp., 290 N. Y. 145, 152).

Thus, the principle involved is that of nondelegable duty, the service station owner’s responsibility being vicarious and not depending upon evidence of its own negligence.

Accordingly, the order of the Appellate Division should be affirmed in all respects.

Chief Judge Fuld and Judges Van Voorhis, Scileppi and Bergan concur with Judge Keating; Judge Breitel dissents, in part, and votes to affirm in an opinion in which Judge Burke concurs.

Order modified by dismissing the complaint against Smith, with costs to defendant Smith against plaintiff, and, as so modified, affirmed, with costs to plaintiff and defendant, Joyce Cridland Company, against Manion.  