
    William Heffern, as Administrator, etc., of Edward Heffern, Deceased, Appellant, v. The Village of Havebstraw and The Excelsior Brick Compart of Haverstraw, Respondents, Impleaded with John W. Gillies and Others, Defendants.
    Second Department,
    March 24, 1911.
    Municipal corporations — negligence — failure to prevent excavation causing landslide — effect of verdict exonerating codefendant — contributory negligence.
    Where in an action against a private corporation and a village as joint tort feasors to recover for the death of a person caused by a landslide in an excavation which had been made by the private corporation, the only ground of liability of the village is predicated upon its failure to prevent or remedy the acts of its codefendant, a finding by the jury that the private corporation was not guilty of any negligent act which was the proximate cause of the death necessarily exonerates the village.
    Moreover, a decedent so killed was guilty of contributory negligence where, being in a place of safety and hearing that there had been a landslide in the excavation with which he was familiar, he went there wholly from curiosity and was killed when a second landslide occurred.
    Woodward and Rich, JJ., dissented in part.
    Appeal by the plaintiff, William Heffern, as administrator, ete., from a judgment of the Supreme Court- in favor of the defendant The Excelsior Brick Company of Haverstraw, entered in the office of the clerk of the county of Kings on the 9th day of June, 1910, upon the verdict of a jury, and also from' an order entered in said clerk’s office on the 26th day of May, 1910, setting aside the verdict of a jury against the defendant The Village of Haverstraw and denying the plaintiff’s motion to set aside the verdict in favor of the defendant The Excélsior Brick Company of Haverstraw, and also from an order entered in said clerk’s office on the 18th day of October, 1910, resettling the prior order.
    
      Martin T. Manton, for the appellant.
    
      Alonzo Wheeler, for the respondent The Village of Haverstraw.
   Burr, J. :

On January 8, 1906, Edward Heffern while standing in Rockland street in the village of Haverstraw was killed. In close proximity to the street were deep excavations into which' the earth between these excavations and the line of the street, and also that forming part of the roadbed of the street itself, fell, drawing him down to his death. This action was brought to recover for the pecuniary injury resulting to his next of kin. When originally brought the Excelsior Brick Company, the village of Haverstraw and fourteen individuals were named as parties defendant. As to all of the defendants except the brick company and the village the action has been terminated, either by the voluntary act of plaintiff or by judgment of nonsuit from which no appeal has been taken.

Upon the trial of this action the jury found a verdict in favor of the brick company and against the village. Upon motion - the trial court set aside the verdict against the village, and ordered a new trial. The plaintiff moved to set aside the verdict in favor of the brick company, and for a new trial as to it. Plaintiff appeals from the judgment in favor of the brick company, and from the order denying his motion for a new trial as to it, and also from the order setting aside the verdict and granting a new trial as to the village of Haverstraw. Plaintiff concedes in his brief that the question of the liability of the brick company was one of fact for the jury. We think that its finding thereon is not against the weight of the evidence.

Ho exceptions were taken at the trial nor argued upon this appeal which, so far as the brick company is concerned, merit consideration. The judgment in its favor must be affirmed. We think also that the order setting aside the verdict against the village was right.

The complaint alleged that the caving in of the street and the adjoining premises was caused by the “ wrongful, unlawful and negligent acts of all the defendants herein by digging or causing to be dug by them, earth from or in the vicinity of or adjacent to said street and premises, and carrying or causing to be carried away the earth or dirt so excavated, thereby depriving the said street and houses and premises of their proper support and causing the same to cave in and fall down, thus destroying the said houses and property as well as causing the death of said deceased; and also in causing, permitting and allowing the said work to • be done for a long time, and the said street, houses and premises to remain in a dangerous and unsafe state and condition, without warning or notice and without right or authority; and in causing, permitting and allowing the said public highway and adjacent buildings and premises to be made dangerous and unsafe, and in allowing and permitting the same so to remain for a long and unreasonable and unnecessary length of time, with full knowledge of the fact that the same were dangerous and unsafe, or when the defendants and each of them could by the exercise of reasonable care have ascertained that the same were dangerous and unsafe, and in failing to take any precautions whatsoever to prevent the occurrence of said disaster.” The complaint further alleged that the defendants by their wrongful acts in digging and excavating as aforesaid, thereby created and maintained a public nuisance which endangered the lives and safety pf a considerable number .of persons, including said deceased.” There was no suggestion in the evidence that the defendant, the village of Haverstraw, was an active participant in the digging above referred to,-or that it caused the excavation to be made. If it could be held liable at all under this complaint it was for permitting the highway to remain in a dangerous and unsafe condition by reason of the alleged wrongful and negligent acts of the other defendants. But the jury have decided that the brick company, the only other defendant, was not guilty of any wrongful or negligent act which was the proximate cause of the death of plaintiff’s intestate. As the ground of the liability of- the village is predicated upon an omission to prevent or remedy the wrongful act of its codefendant, if such codefendant is acquitted of fault in this regard it is impossible to hold the village liable. But if the evidence had established wrongful conduct or negligent omission of duty on the part of the village, I do not think that plaintiff could recover as against it, for the reason that the freedom from contributory negligence of his decedent was not established. The point was sharply raised in this case by the motion to dismiss, and in this respect it differs from some other cases which have previously been before this court, growing out of the same disaster. Plaintiff’s intestate was not, at the time of the accident, using the highway for ordinary purposes of travel. He was not even a casual spectator of. the occurrences there going on, whose attention was drawn to them while traveling in the vicinity, and who, in consequence thereof, loitered for some short period therein. There were at least three separate and distinct subsidences or landslides on the evening in question, occurring at intervals of a few moments. When the first of these occurred Edward Heffern was in a saloon at some distance from the scene of the accident. It was a place of safety. Shortly after the first occurrence, a man came into the saloon and stated that there had been a slide. Upon hearing of it, Heffern, in company with several others, left the saloon and went toward the brick yards. Though he may not have known exactly where the slide was, from his previous experience of many years as a laborer in the brick yards and his familiarity with previous slides, he must have known that the slide was in that neighborhood. It cannot be claimed that he was passing along Bockland street on his way to his home, for his residence was in the opposite direction. There is no evidence that, in going to the scene of the first slide, he was inspired by motives of humanity to seek to rescue those who had been injured, for there was no suggestion that injury had resulted. There can be but one possible inference from the evidence in this case, which is that from motives of curiosity only he went to the place of danger, knowing it to be such. Almost immediately after his arrival on Bockland street, in close proximity to the place where the first subsidence had occurred, there was a second one in which the portion of the street where Heffern was standing was drawn down and he was drawn down with it and killed.

Under such circumstances we think that even if the fault or omission of the village of Haverstraw had been established, as against such village the plaintiff could not recover. (Johnson v. City of New York, 186 N. Y. 139; Bogart v. City of New York, 200 id. 379.)

The judgment in favor of the defendant the Excelsior Brick Company is affirmed, with costs, and the order setting aside the verdict against the village of Haverstraw and granting a new trial is .also affirmed, , with costs.

Present — Jenks, P. J., Burr, Carr, Woodward and Bioh, JJ. Woodward and Bich, JJ., dissented, however, from the statement that the plaintiff was guilty of contributory negligence as a matter of law.

Judgment and order in favor of the defendant the Excelsior Brick Company unanimously affirmed, with costs; order setting aside the verdict against the village of Haverstraw and granting a new trial unanimously affirmed, with costs.  