
    Robert Whitehill, Respondent, v. Hartman Construction Company, Appellant.
    (Supreme Court, Appellate Term, Second Department,
    October, 1914.)
    Negligence — when owner of building not liable for injuries to pedestrian — carelessness of contractor who places obstructions in street.
    Where a contractor solely for his own convenience, in connection with the erection of a building, placed a donkey engine in the street from which a cable ran over the sidewalk into the building for hoisting material for mason work, and usually at night the cable was relaxed and laid on the sidewalk and covered with sand, the owner of the building is not liable for injuries to a pedestrian who tripped over the cable at night.
    Kelly, J. dissents.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, second district, rendered in favor of the plaintiff upon a trial before the court without a jury.
    George W. Hurlbut (James A. Nooney, of counsel), for appellant.
    Hurd & Grim, for respondent.
   'Blackmar, J.

The defendant was erecting a building on premises on the west side of Adelphi' street about eighty-four feet south of Myrtle avenue. It made a contract with one Cohen for the mason work. The contractor placed in the street a donkey engine from which a cable ran over the sidewalk into the building for hoisting material for the mason work. Usually, at night, the cable was relaxed and laid on the sidewalk covered with sand.

About nine-thirty p. m., on January 20, 1914, the plaintiff was walking over the sidewalk when he tripped over the cable, which was then stretched over the sidewalk about two or three inches above the surface, and in falling received the injuries for which he has recovered damages against the defendant.

The justice was justified in finding the plaintiff free from contributory negligence. He had a right to assume that the street would be free from such obstructions ; and his failure to see and guard against it was not negligence either as matter of law or fact. The serious question in the case is the defendant’s responsibility for the conditions which caused the injury. Doubtless, a rope or cable stretched across a sidewalk, two or three inches from the surface, is eminently dangerous to life and limb. To create or maintain such a condition is, to say the least, gross negligence But in this case the defendant neither created it nor maintained it. Mullins v. Siegel-Cooper Co., 183 N. Y. 129, is the case relied on by the plaintiff and by the trial justice. It is there said: The general rule is that the owner of property is not liable for the negligent acts of an independent contractor with whom he has an agreement for the performance or prosecution of work. But to this rule there is an exception. If the work itself creates the danger or injury, then the ultimate superior or proprietor is liable to persons injured by a failure to properly guard or protect the work, even though the work is entrusted to an independent contractor.”

The contract with Cohen did not call for the installation or use of a donkey engine. It was installed for the contractor’s convenience. There is no evidence that the defendant determined its location. It might have been placed in the cellar or back yard, or anywhere in the building. And, finally, it was not the engine, nor the work done by it, which created the danger, but the negligence or fault of some one, presumably the contractor, who left the cable stretched across the sidewalk at night. The general rule above set forth governs in this case and not the exception. For it was not the “ work itself,” i. e., the mason work, which created the danger; but the carelessness of the mason contractor who alone is liable.

An analysis of the cases where the exception to the general rule has been held "to apply shows that they are all cases in which the very work contracted to be done caused the danger. Such is an excavation in the street (Storrs v. City of Utica, 17 N. Y. 104; Creed v. Hartman, 29 id. 591); or diverting water onto plaintiff’s premises (Vogel v. City of New York, 92 id. 11). So in the Mullins case, the necessary use of the sidewalk by the contractor caused the defect complained of. We do not think the doctrine applies to a case where the obstruction is not the necessary or even the usual result of the work contracted to be done, but is the result of methods or instrumentalities adopted by the contractor for his own convenience.

Kapper, J., concurs with Blackmar, J.

The judgment is reversed and the complaint dismissed, with costs.

Kelly, J., dissents on the authority of Doming v. Terminal R. Co., 160 N. Y. 1; Mullins v. Siegel-Cooper Co., 183 id. 129; Schiverea v. Brooklyn Heights R. R. Co., 89 App. Div. 340.

Judgment reversed and complaint dismissed, with costs.  