
    FERNANDO R. WALKER, et al., Appellants v. THE GLOBE MANUFACTURING AND IMPORTING CO., Respondent.
    
      Contributory negligence—Tenants of floors under a common landlord,— Failure of one to exercise a power he possessed, and which he was under contract with the landlord to exercise, without which failure the injury to him could not have happened, e. q., shutting off Croton water, constitutes contributory negligence.
    
    Plaintiffs and defendant were lessees of a common landlord. Defendant occupied the second floor, attached to which was a water closet supplied with water from a tank over it, the pipe feeding the tank being fitted with a ball-cock working automatically, so that the cock remained open, permitting water to flow into the tank "until it reached a certain height, when the floating ball closed the cock and prevented any further flow of water. Plaintiffs occupied the first or ground floor, basement and sub-basement. On a certain morning plaintiffs’ premises were found wet and flooded, the ceiling over the ground floor dripping with water and a part of it fallen down. The water had run into the basement and sub-basement and injured plaintiffs’ goods. On investigation it was found that there had been fitted to the end of the pipe, which supplied the water closet with water, a rubber hose extending over the top of the tank beyond its outer edge, having a tin pipe attached to its end; the tank was empty, but the floor of the water closet was • wet. No water was flowing from the pipe when the discovery was made. Plaintiffs had control of the stop-cock in the basement whereby the entire water supply for the building could be cut off, and had by their written lease, under seal, covenanted with the common landlord to cause the Croton water to be shut off from the lofts of the building each night before leaving the premises. The water did not usually flow above the first floor except during the night.
    
      Held, that the ruling of the trial judge, that evert if the defendant was negligent, yet plaintiffs, by failing to exercise the power which they possessed of shutting off the water, and which they were under contract with the owner to exercise, were guilty of contributory negligence.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.
    
      Decided February 4, 1889.
    
      Appeal by plaintiffs from judgment entered upon the dismissal of the complaint at the trial. The facts sufficiently appear in the opinion.
    
      John A. Mopes, attorney and of counsel for appellants, argued:—
    I. The defendant was guilty of gross and inexcusable negligence in so disarranging the water fixtures as to render wholly nugatory all the safeguards provided to prevent an overflow. tThe extension tube found upon the pipe on defendant’s premises necessarily diverted the flow of the water from its proper channels, and caused it to run upon the floor. Under such circumstances the damage was inevitable. Defendant being in the exclusive occupation of ■ that floor is prima facie chargeable with such negligence. Moore v. Goedel, cited below.
    II. The ordinary rules applicable to cases of contributory negligence do not apply to the facts of this case. Plaintiffs’ omission to turn off the water in no respect contributed to the injury sustained by them. It is true that the overflow would not have occurred if that had been done, but permitting the water to flow through the pipes provided for that purpose, did not cause or contribute to the accident. These pipes were all in good order and thoroughly equipped to prevent such a result. If the pipes and faucet had not been tampered with, the flow of water through them would have been harmless. It might as well be claimed that the owner of the building contributed to the result by putting the pipes in the building, without which no such accidént could have happened. The omission of the plaintiffs to turn off the water, and the overt act of the defendant in disarranging the fixtures, were entirely separate and distinct events, and had no connection with each other. The former in no way tended to cause the overflow, the latter directly produced it. As bearing on this, see Haley v. Earle, 30 N. Y. 208; Savage v. Corn Exch. Ins. Co., 36 Ib. 658; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. (N. S.) 196.
    III. It was not even negligence on the part of the plaintiffs to permit the water to run through the pipes during the night. These pipes had been placed in the building for the purpose of supplying the upper floors with water. They were in good order, and provided with every safeguard to prevent such an occurrence as happened. As the water only rose to the defendant’s floor at night, the fixtures would have been useless, if the tanks were not permitted to fill during the. night. As between the plaintiffs and defendants it would have been an unnecessary .and ungracious interference with the rights and comfort of the latter to shut off the water when alone it could be available. Not to do so was certainly not negligence, as plaintiffs could not anticipate that the situation, perfectly safe in itself, would be wholly changed by a direct act of inexcusable negligence on the part of defendant. If the tenant of a lower floor in a large city is to be held guilty of negligence for such an omission, then such a tenant is left wholly without remedy for the consequences of the grossest negligence of those above him. The plaintiffs had a right to act upon the presumption that defendant would act in accordance with the rights and duties of both. Newson v. N. Y. Cent. R. R. Co., 29 N. Y. 383 ; Dobiecki v. Sharp, 88 Ib. 206; Gillespie v. City of Newburgh, 54 Ib. 470.
    IV. The provision contained in the lease is not available to the defendant as a defense to this action. Defendant was not a party to the lease. With this agreement on the part of Mr. Walker, defendant had nothing to do. He was' not a party to it, and it did not even appear that he knew of it. As to this, see Miller v. Woodhead, 104 N. Y. 471, 477; Larmore v. Crown Pt. I. Co., 101 Ib. 391, 394; Burke v. De Castro, 11 Hun 354, 356 ; Lake Ontario Shore R. R. Co. v. Curtiss, 80 N. Y. v. 47 Ib. 233 : Turk 
      v. Ridge, 41 Ib. 201; Merrell v. Green, 55 Ib. 270; Vrooman v. Turner, 69 Ib. 280.
    V. Had the landlord himself been guilty of the overt act of negligence proved in this case, it is more than doubtful if the clause in the lease would have availed him as a defense to an action brought by plaintiffs.
    VI. The case of Moore v. Goedel, relied upon by defendant is not an authority in support of defendant’s position in this action. That case was decided on another principle entirely. Plaintiffs had wholly failed to prove the negligence of defendants. The court held that defendant, being in the common occupation with another firm, of the floor when the difficulty occurred, it could not be presumed that he was at fault in leaving the faucet turned on, while he positively proved that he had nothing to do with it. (The case had gone to the jury.) This disposed of the case. What was further said by the learned judge who wrote the opinion was pure dictum, and may not have been concurred in by his associates. But even as to that, the circumstances were entirely different from those of the case at bar. The promise to shut off the water was made by the tenant below to the co-occupants of that floor, who were also tenants. The damages occurred from simple failure to turn off a faucet, not from an overt act such as complained of here. This case has been repeatedly cited as an authority upon the question on which it was actually decided, but neither the reporter, nor any compiler of decisions nor any court, has ever cited it as an authority for the principle claimed by defendant in this action. On that question the opinion has been universally treated as obiter.
    
    VII. The true question involved in this case is this: Which of the two acts or missions was the proximate cause of the injury ? Shearman & Red. on Neg., § 33 ; Addison on Torts, § 34, page 27 of ed. of 1887; Trow v. Vt. Cent. R. R. Co., 24 Vt. 487; Button v. Hudson R. R. Co., 18 N. Y., at p. 258; Nelson v. N. Y. Cent. R. R. Co., 29 Ib. 383; Austin v. N. J. Steamboat Co., 43 Ib. 82; Kernwacker v. C., C. & C. R. R., 3 Ohio St. 172; Morrissey v. Wiggins Ferry Co., 43 Mo. 380; Richmond v. Sacramento R. R. Co., 18 Cal. 357; Stucke v. Milwaukie R. R. Co., 9 Wis. 202 ; Ind. R. R. Co. v. Cauldwell, 9 Ind. 397; State v. Manchester R. R. Co., 52 N. H. 528, pp. 553 to 556 ; Green v. Erie R. Co., 11 Hun 333; Kenyon v. N. Y. Cent. R. R. Co., 5 Ib. 479; affirmed 76 N. Y. 607.
    VIII. In any view of the question above discussed the case should have been submitted to the jury. If there was any doubt as to whether or not the plaintiffs’ omission to turn oil the water was negligence; whether or not it contributed to the injury; whether it or the defendant’s negligence was the proximate cause of the injury, or whether or not the defendant’s negligence was so gross as to.be equivalent to willful injury. Such doubts should have been solved by the jury. It was their province and not that of the court to decide such questions. It is only where the proofs conclusively show that the plaintiff has been guilty of negligence contributing directly to the injury suffered by him that the cour£ is warranted in dismissing a complaint of this character. The exceptions taken were well founded and should be sustained, and a new trial ordered.
    
      William H. Townley, attorney and of counsel for respondent, argued :—
    I. It is well settled that the burden of proof was on the plaintiffs to show that they were free from any negligence which contributed to the injury. Sherman & Redfield on Negligence, § 34. The injury must be solely caused by the negligence of the defendants. It is not enough that it should be essentially so caused. Grippen v. N. Y. Cent. R. R. Co., 40 N. Y. 34 ; see p. 51. A party claiming to have been injured by the negligence of another must fail in his action unless it appear that he was free from any negligence without which the injury would not have happened. The greatest negligence on the part of the defendant will not cure the defect of the least negligence contributing to the injury on the plaintiffs’ part. Cases of negligence form no exception to the rule that it is the judge’s duty to nonsuit where a verdict for the plaintiff would be clearly against the weight of evidence. Wilds v. Hudson River R. R. Co., 24 N. Y. 430.
    II. Moore v. Goedel, 34 N. Y. 527, affirming 7 Bos. 591, is a case in point on the question involved here, and, it is respectfully submitted, is conclusive against the plaintiffs.
    IH. This is not a case of the defendants seeking to gain the benefit of a contract to which they are strangers. 101 N. Y. 371, and other cases cited by plaintiffs’ counsel at the trial, have no application. We are not suing on a contract made between others. We are defending against a claim for damages based upon the affirmation, which must be proved, that the plaintiffs themselves were not at fault in the matter. The facts disclose that a neglect of duty on the plaintiffs’ part contributed to the accident. Therefore, there cannot be a recovery.
   By the Court.—Freedman, J.

The plaintiffs sued to recover damages for injury to a stock of paper on their premises, Nos. 16 and 18 Reade street, in the city of New York, which damages they claim were caused by the negligence of the defendant in permitting an overflow of water in a certain closet on the second floor of said buildings. The defendant at the time in question occupied the whole of said second floor as a tenant, and the plaintiffs, as tenants, occupied the first or ground floor and the basement and sub-basement.

At the trial the evidence, on the part of the plaintiffs, established the following facts, viz.: On the morning of April 7, 1887, plaintiffs’ premises were found wet and flooded. The ceiling over the ground floor was dripping with water, and part of the ceiling had fallen down. The water had run over the floor and down into the basement and sub-basement, and materially damaged plaintiffs’ stock. The defendant’s water closet on the second floor was supplied with water from a tank over the closet. The pipe which fed this tank was fitted with a ball-cock which worked automatically. The cock remained open, permitting the water to flow into the tank, until it reached a certain height in the tank, when the floating ball closed the cock and prevented any further flow of water On the morning in question it was found that a rubber hose had been fitted to the end of this pipe and extended over across the top of the tank beyond its outer edge, with a tin pipe attached to the end of the rubber hose. No water could flow into the tank while this extension tube was attached in the way it was found. The tank was empty, but the floor of the closet was wet. There was no water flowing from the tube when this discovery was made.

But it was also shown that the plaintiffs had the control of the stop-cock in the basement whereby the entire water supply for the buildings could be cut off. They had expressly covenanted with the owner of the premises “ to cause the Croton water to be shut off from the lofts of said buildings each night before leaving the premises.” This provision was contained in a written lease under seal made in 1875, which was renewed from time to time, and was in force at the time of the occurrence referred to. Plaintiffs usually did shut off the water during the cold weather, but they could not tell how many times they had not done so during the months of February, March and April, 1887. If the water had been shut off at the stop-cock in the basement no water could have ascended to any of the floors above the basement. The water did not usually run above the' first floor of the premises except during the night.

Upon this state of facts the trial judge, on defendant’s motion, dismissed the complaint on the ground that, even if the defendant was negligent, the plaintiffs, by failing to exercise the power which they possessed to shut off the water, and which they were under contract with the owner to exercise, although' that contract might not enure to the benefit of the defendant, if the defendant had been injured by reason of the water not having been shut off, were guilty of contributory negligence.

The ruling was correct under the decision of Moore v. Goedel, 34 N. Y. 527; affirming 7 Bosw. 591. True, that case involved, as an additional point, the insufficiency of the evidence to establish negligence in the particular defendants sued. But the point now under consideration was also involved, and it was held, both by this court and the Court of Appeals, that an undertaking by one of the plaintiffs to take charge of a water faucet in the cellar of the building occupied by them, and to see that the water was shut off at night, precluded the plaintiffs from recovering damages from tenants of an upper floor for injury caused by overflow during the night; and that plaintiffs’ failure to shut off the water was negligence which contributed to, and was a proximate, not a remote, cause of the injury. The undertaking referred to was a verbal promise made by one of the plaintiffs to Cromwell & Co., who were the landlords of the defendants. No promise was made by the plaintiffs to the defendants, and it nowhere appeared that the defendants in any way knew of plaintiffs’ promise to Cromwell & Co. Nevertheless it was held that plaintiffs’ failure to keep their promise was available to the defendants when sued.

The facts in the case at bar are just as strongly, if not more so, in favor of the defense as they were in Moore v. Goedel. In the latter case the promise, as stated,. was verbal and made between co-tenants, but not between the plaintiffs and the defendants sued. In the x present case the plaintiffs covenanted in writing under seal with the common landlord of the premises “ to cause the Croton water to be shut off from the lofts of said building each night before leaving the premises.” Under this covenant the plaintiffs assumed the duty to cause the water to be shut off every night not only from defendants’ loft, but from all the lofts. Under the doctrine of Moore v. Goedel it must therefore be held, that the owner and all his tenants were entitled to the protection of this covenant, at least so far as any claim for damages by the plaintiffs arising from their violation of it is concerned. This is not a case in which the defendant seeks to gain a benefit from the enforcement of a contract to which it is a stranger, but a certain defense is resorted to against a claim for damages based by the plaintiffs upon the affirmation which must be proved by them, that they themselves were not at fault in the matter.

The judgment should be affirmed with costs.

Sedgwick, Ch. J., and Truax, J., concurred.  