
    Dennis P. Dunn, Respondent, v. Empire Engineering Corporation, Appellant.
    Fourth Department,
    November 15, 1911.
    Negligence — obstruction of towpath by contractor—injury to animals —facts justifying recovery—liability of contractor building State canal.
    Action against a contractor constructing a portion of the State canal to recover for injuries caused to mules used for towing by a navigator on the canal owing to the fact that in the night time they became mired in deep mud left upon the towpath by the defendant, who had failed to give warning of the dangerous condition by lights or signals. Evidence examined, and held, sufficient to warrant the jury in finding the defendant guilty of negligence and the plaintiff free from contributory negligence.
    Where the contract with the State provided that the work should be done so as not to interfere with the navigation of the canal, the defendant, being an independent contractor, cannot claim exemption from its negligent acts because no liability exists against the State or any of its officers or agents. The liability exists independent of any agreement by the contractor to indemnify ■ and save- the State harmless from claims against it.
    Appeal by the defendant, the Empire Engineering Corporation, from a judgment of the Supreme Court in favor of the » plaintiff, entered in the office of the clerk of the county of Oneida on the 14th day of March, 1911, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 17th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    G. D. Judson, for the appellant.
    
      Jerry F. Connor, for the respondent.
   Kruse, J. :

The plaintiff, a navigator of the canals, was towing two boats with a team consisting of two mules and one horse. The animals were mired in the mud placed or permitted to run upon the towpath, through the carelessness of the defendant, as the plaintiff contends. The animals were injured so that one died and the other two are not as good as they were before they were injured.

No claim is made that the verdict' is excessive, but. the defendant contends that the plaintiff failed to show that he Or his driver was free from contributory negligence or that the defendant was negligent; and. furthermore that even if the defendant was negligent, no liability exists against it for reasons which will be stated presently.

The defendant had a contract for doing canal work. It was engaged in doing that work near Adams Basin, Monroe county. The towpath was from twelve to thirteen feet wide—some say sixteen to eighteen feet — located on the north side of the canal. On the north side of the towpath was the State spoil land and to the north of that was a highway. The spoil ground sloped toward the highway. A fence or barrier was placed between the highway and the north side of the spoil ground, thus forming a pocket, the bottom of which sloped away from the north side of the towpath, to the depth of six or eight feet below the level of the towpath. Into this pocket the defendant put the mud and soft material excavated from the canal, making a pile of spoil somewhat higher than the level of the towpath. There was no barrier between the spoil land and the towpath. It was not contemplated that the mud and soft material should be put upon the towpath, but upon the spoil ground, and the defendant contends that none of the material’ was placed upon the towpath by it. . The plaintiff contends otherwise, claiming that the defendant either placed it upon the towpath or that the spoil was piled so high and the mud was so soft that without being held in place by a barrier or otherwise it naturally would and did run upon the towpath.

. The contract between the defendant and the State provided 'that the work should be done so as not to interfere with the navigation of the canal. The evidence tends to show that the entire towpath for quite a distance was covered to within six feet of the canal bank with mud fifteen or twenty inches deep, and there were holes in the towpath besides; that the plaintiff and his driver were unaware of the condition, and after the animals were driven into the mud they floundered and finally turned to the right, where the mud was still deeper, so that it became necessary to pull them out, and they were injured.

The accident occurred on Sunday night, August 15, 1909, near midnight. It was dark. There was no light or signal of any kind to warn against the dangerous condition of the towpath. While the condition of the towpath was in dispute, I think the jury was warranted in finding from the evidence that the towpath was made impassable and dangerous through the fault of the defendant, and in consequence thereof the plaintiff sustained the loss, and that without fault upon his part or any want of care imputable to him.

The defendant, however, contends that because the State or any of its officials would not be liable to the plaintiff, the defendant is likewise exempted from liability. Counsel makes a very interesting argument to show that no liability exists against the State or any of its officers or agents. That, I think, may be conceded. I do not see how, in any event, the State or its agents could be made liable, because neither was responsible for the dangerous condition of the towpath. The doing of the work in hánd did not create the dangerous condition, but rather the manner in which it was done. The defendant was in no sense an agent or servant of the State. It was an independent contractor. In a broad sense the canal is a public highway, and defendant’s relation to the work was not unlike that of a contractor engaged in improving the public roads. The towpath is for public use. The plaintiff had a right to use it as he did. It was made impassable and dangerous by the defendant. The defendant’s liability does not arise out of any obligation it may be under to the State, by the terms of its contract, to indemnify and save the State harmless against claims which may come against the State or its officers, but because of the direct wrong done by the defendant to the plaintiff. The defendant had no more right to obstruct and make impassable the towpath than any one else, except so far as it was necessary or permissible in carrying out its contract with the State in doing the work. The towpath was not closed to travel, and not the least precaution was taken to guard against the dangerous condition.

Counsel on either side have cited many decisions, but it does not seem necessary to analyze or comment upon them. I think none is at variance with the’views expressed, but quite in harmony therewith. The latest case to which attention is called is that of Huntley v. Empire Engineering Corporation (189 Fed. Rep. 516), recently decided by Judge Hazel, where this same defendant was held liable for leaving a submerged obstruction in the canal. Judge Hazel cites various cases in the Court of Appeals to sustain his decision, and I think they also support the conclusion reached here.'

None of the other grounds urged- for reversal requires discussion.

The judgment and order should be affirmed, with costs.

All concurred..

Judgment and order affirmed, with costs.  