
    Mary Creed et al., Plaintiffs, v. Geo. Hartman, Defendant.
    1. Where a contractor for doing the mason work in the erection of a house on a public street in the city of Hew York, makes a sub-contract with a third person to^ make necessary excavations, &c., and the sub-contractor leaves his excavations in the sidewalk unprotected, so that a traveler, without fault on his part, falls therein and is injured, the original contractor is liable to the person injured, notwithstanding the sub-contractor covenanted to prevent all accident, by proper precautions, and to be responsible for all damages caused by interrupting the sidewalk.
    2. A question to the person injured, viz.: “State to the jury the effect of that injury upon you, and how your situation is ? ” is unexceptionable, where the answer merely details the nature and extent of the injury, and states only facts within his knowledge, and not matters of opinion requiring professional skill in their just formation.
    (Before Hoffman and Woodruff, J. J.)
    Heard, January 16;
    decided, March 9, 1861.
    Exceptions taken at the trial, and there ordered to he first heard at General Term.
    The plaintiffs, Mary Creed and George A. Creed, husband and wife, bring this action to recover damages for injuries to the wife, caused by her falling into an excavation, on the first of August, 1859, on the sidewalk in Third avenue, between Eorty-seventh and Forty-eighth streets, in the city of Hew York. The defence of the defendant George Hartman, is based in part on the facts : that he is a mason; that he and his partner, Eberspacher, contracted with the owner of the lots to do all the mason work, in erecting eleven houses on this avenue between the streets named; and having such contract, they entered into a written sub-contract on the 12th of March, 1859, with one Thomas Brady, to make all necessary excavations, &c.; to remove all superfluous earth, and to refix and repave the avenue and streets, in which it was covenanted that “ all accidents are to be prevented by the contractor (Brady) by proper precautions; and all responsibility, of damage that may be caused by blasting or interrupting the sidewalk, shall be made good by the contractor without any extra charge, or after claim whatever,” and that Brady had sole charge of such excavation and work at the time of the alleged injury.
    The action was tried before Mr. Justice Bobertsoh and a jury, on the 8th of Hovember, 1860. On the trial, Mary Greed was examined on her own behalf, and asked this question, viz.:
    “ Q. State to the jury the effect of that injury upon you, and how your situation is ?”
    To which question the defendant’s counsel objected, which objection was overruled by the court, to which decision and ruling the counsel for the defendant then and there duly excepted.
    
      A. It affected me in a good many ways ; my head has been hurt from it;' my knee pains me all the time; I cannot carry anything- up stairs, my side hurts so; my thigh feels bad once in a while; it pains me when it is going to storm all the time; that leg is shorter than the other ; I have to get a gaiter made to suit, with the heel made larger than the other, and a piece on the side; my thigh was broken in the middle, right across; I was confined seven weeks in bed; I cannot say how deep the sewer was; it was very deep.”
    
      When plaintiffs rested, the defendant moved a dismissal of the complaint, on the grounds :
    “First. That defendant, not being the owner of the premises, was not liable in this action.
    Second. That Christian Eberspacher, the defendant’s partner in the erection of the buildings, should have been joined as a party defendant.
    “ Third. That it appeared that the neglect of the plaintiff contributed to the injury.
    “ Fourth. That the excavations were not made by the defendant, but by one Thomas Brady under a contract made by defendant and his partner, Eberspacher, with said Brady, and that defendant was not liable for the acts or omissions of said Brady.
    “ Which motion was denied by the court, to which ruling and decision the defendant’s counsel then and there duly excepted.”
    When the testimony was closed, defendant moved to dismiss the complaint, on the grounds (first) that if there was any negligence, it was that of Brady; and (second), that if defendant was liable, Eberspacher should also have been made defendant. The motion was denied, and defendant excepted.
    The judge charged, “ that Hartman was responsible for injury done to the plaintiff, if the accident occurred through the negligence of persons employed by him, provided there was no negligence on the part of the plaintiff.” The charge, as made, was not excepted to.
    “ The defendant’s counsel then asked the court to charge the jury that where a party has a license to construct a sewer at his own expense, if he contracts it to a third party he is not liable for any accident occurring through the negligence of such third party.
    “ The court refused so to charge, but charged that if the excavation was caused by the party sued, he was responsible for not having that excavation properly protected, although he might not be liable had the accident occurred while blasting was actually going on by the contractor.”
    To the refusal to charge as requested, the defendant excepted.
    The jury found for the plaintiffs $600 damages. The Judge then ordered the questions of law arising at the trial to be first heard at General Term.
    
      Wm. R. Stafford, for defendant.
    I. The excavations in question having been made by Brady and his workmen, and they having the sole charge thereof at the time of the accident, under an independent contract, and not as our servants, neither the defendant nor his firm were liable for their negligence. (Blake v. Ferris, 1 Seld., 48 ; Kelly v. The Mayor, 1 Kern., 432 ; Pack v. The Mayor, 4 Seld., 222 ; Rapson v. Cubitt, 9 Mees. & Wels., 710.)
    II. The plaintiff was incompetent to state the effect of the injury upon her. The question, as to the effect of it, presupposes that she was an expert, and had a sufficient knowledge of medical science to demonstrate the effect produced from the cause alleged. Such a rule would nullify the necessity of skill, and allow the feelings, prejudices, and mental conclusions of an ignorant plaintiff to outweigh the facts, even with the most impartial jury.
    III. The court erred in refusing to charge as requested. The request was in exact conformity with the law, as laid down in Blake v. Ferris. Brady was as much bound to protect the excavation as he was to make"it.- The entire control was vested in him, and defendant had no right to interfere with him while in performance. The verdict should be set aside, and judgment for the defendant ordered.
    
      A. L. Pinney, for plaintiffs.
    I. The action is properly brought against the defendant. (Storrs v. The City of Utica, 17 N. Y. R., 104 ; Conrad v. Village of Ithaca, 16 id. ; and note 185 ; Mayor of New 
      
      York v. Bailey, 2 Denio, 433 ; Bush v. Steinman, 1 Bos. & Pul., 404.)
    II. The exception that Brady was guilty of negligence amounts to nothing—the defendant may have been guilty of negligence too—the exception does not meet the case.
   By the Court—Hoffman, J.

The action was for a personal injury alleged to have been received by the plaintiff from the negligence and fault of the defendant, in not properly securing an excavation, opposite certain houses, for which he was contractor and part owner.

The injury was clearly proven. The plaintiff was exempted by the jury, under a proper charge of the judge to the point, from all negligence on her own part. There is no complaint as to the amount of damages.

A leading ground of defense is, that one Brady, and not the defendant, is responsible for the injury, if any one is so.

The clefendant is proven to have built a range of houses, under ah agreement by which he was to have a lease of two of them on his own account, and the accident happened in front of one of these two.

The defendant, and one Eberspacher, his partner, were parties to the original contract with the owners of the ground or houses, and they had made a contract with Thomas Brady, by which he was to make all the excavation necessary for the erection of the eleven houses, the mason work of which was to be performed by the defendant and his partner. By this agreement, Brady was to dig out all the ground and other matters now on the premises, and to blast the rocks required for cellars, &c., “ all accidents to be prevented by the contractor, (Brady,) by proper precautions, and all responsibility of damage or damages, whatsoever, that may be caused by blasting, or interrupting the sidewalks, shall be made good by the contractor, without any extra charge or after-cl aim whatever.”

The defendant moved to dismiss the complaint, on the ground of the sole liability of Brady, if there was any, which motion was denied, and an exception taken.

It should be observed that the place of the accident was the sidewalk, opposite to one of the houses. There was no barrier, and the boards put across broke from the weight of the plaintiff. It was an areaway dug out from the house to the curbstone.

Eo license from any corporate authority, to dig the area, appears in the case.

I do not think the case would be substantially varied, (actual neglect properly to guard the excavation being shown,) if there had been a license proven; nor if we are bound, as counsel insist, to assume that it was obtained— that the defendants did not act without authority.

It seems to me that the principles of the case of Storrs v. The City of Utica, (17 N. Y. R., 104,) and the very pertinent decision of the Court of Appeals in Congreve v. Smith, (18 N. Y. R., 79 ; S. C., 5 Duer, 495,) make the defendant liable, even assuming that Brady may have been so.

Another ground of the motion for a nonsuit was, that the defendant’s partner, Eberspacher, ought to have been joined as a party defendant in the action. The case of Low v. Mumford (14 John. R., 426,) cited by the counsel of the plaintiffs, appears decisive of this point. (See also 1 Chitty Pl., 86.) It is in the nature of an action for a nuisance, caused by the acts of the defendants, and against which they had not protected passers by, and both are liable separately.

The court was asked to charge, that where a party has a license to construct a sewer at his own expense, if he contracts it to a third party, he is not liable for any accident occurring through the negligence of such third party. To a refusal so to charge an exception was taken.

Understanding this to mean a license from the proper municipal authority, there is no ground in the case for the request.

The exception taken to the question addressed to the plaintiff, as to the effect of the injury upon her and her situation, is untenable. She states in reply nothing but facts, of which she in some respects could alone be fully-apprised, and in all was best apprised. There is no opinion of an expert elicited or requested.

Judgment must he ordered for plaintiffs on the verdict. Ordered accordingly.  