
    Merritt C. Herrington, App’lt, v. The Village of Lansingbuegh, Resp’t.
    
      (Court of Appeals,
    
    
      Filed June 19, 1888.)
    
    Negligence—Municipal corporation—When not liable for negligence OF CONTRACTOR.
    The defendant, a municipal corporation, with power hy its charter to cause the construction of sewers, entered into a contract for the construction of a certain sewer. The specifications for the work provided that all damages arising from blasting to be done in the construction of the sewer should be paid for by the contractors. Said contractors while constructing said sewer fired a blast which frightened plaintiS’s team, and while he was attempting to control the team he was seriously injured. The contractors had entire control of the work and the manner of its performance, Held, that if there was any culpable carelessness which caused the injury to the plaintiff, it was that of the contractors That the contractors alone were responsible for injuries resulting from the noise of the explosion Dahforth, J., dissenting.
    Appeal from a judgment of the supreme court, general term, third department, reversing a judgment in favor of the plaintiff, entered upon the verdict of a jury, and an order denying a motion for a new trial made upon the judge’s minutes.
    
      Edgar L. Fursman, for app’lt; H. A. Merritt, for resp’t.
    
      
       Affirming 36 Hun, 598.
    
   Earl, J.

The defendant is a municipal corporation, and by its charter is clothed with power to cause the construction of sewers. On the 23rd day of October, 1878, it made and entered into a contract in writing with Broderick & Ellis for the construction of a sewer in and through one of its streets called State street. The specifications for the work provided that all damage arising from blasting to be done in the construction of the sewer should be paid for by the contractors. State street crossed Market street at right angles. On the 7th day of December, 1878, the plaintiff came into the village with a team, and tied his horses to a post in Market street, about fifteen feet from State street, in front of a grocery, and went into the grocery, and, while there, the contractors fired a blast in State street which frightened the team. The plaintiff rushed from the grocery, and, while attempting to control the team, was severely injured. The place where the blast was fired was about 200 feet from Market street, and the team, where it was fastened in Market street, was not visible from the place of the blasting. The claim of the plaintiff is that the defendant is responsible to him for the injury he sustained in consequence of the frightening of the horses by the blast.

At the place where the horses were fastened, the street was in perfect condition, and the horses did not become restless or frightened from anything existing in the street, and the accident was in no way caused by any imperfect condition of the street, but simply by noise resulting from the blast.

If there was any culpable carelessness which caused the injury to the plaintiff, it was that of the contractors. They had entire control of the work, and the manner of its performance. They could choose their own time for firing the blasts, and select their own agents and instrumentality. They could make the charges of powder large or small, and they could, in some degree, smother the blasts, so as to prevent falling rocks and much of the noise of the explosion, or they could carelessly omit all precautions, and for the consequences of their negligence they alone would be responsible. If it was a prudent thing to notify persons in the vicinity of the blast before it was fired, then the contractors should have given the notice; but the duty to give it did not devolve upon the village. And for these conclusions the cases of Pack v. Mayor, etc. (8 N. Y., 222); Kelley v. Mayor, etc. (11 id., 432), and McCafferty v. Spuyten Duyvel. etc., R. R. Co. (61 N. Y., 178), are ample authority.

It is conceded by the learned counsel for the appellant that if the plaintiff had been hit by a fragment of rock thrown by the blast, the defendant would not have been, and the contractors alone would have been responsible. So, too, if a fragment of rock had struck one of the horses, or had fallen or passed near them, and thus had frightened them, causing the injury to the plaintiff, within the authorities cited, the defendant would not have been responsible, and, for precisely the same reason, no responsibility rests upon it because the team was frightened by the noise of the explosion.

A rule which would cast responsibility upon the defendant for injuries resulting from the noise of the explosion, and exempt it from responsibility for injuries caused by fragments of rock thrown by the explosion, would rest upon no rational basis, and require distinctions too fine for the practical administration of justice.

The judgment should be affirmed with costs.

All concur, except Ruger, Ch. J., not voting, and Dan-forth, J., dissenting._  