22 N.Y. 355, Althorf v. Wolfe
| Citation | 22 N.Y. 355 |
| Party Name | ALTHORF, Administrator, et al., v. WOLFE. |
| Case Date | December 01, 1860 |
| Court | New York Court of Appeals Court of Appeals |
Page 355
Page 356
[Copyrighted Material Omitted]
Page 357
[Copyrighted Material Omitted]
Page 358
[Copyrighted Material Omitted]
Page 359
COUNSEL
John H. Reynolds, for the appellant.
James T. Brady, for the respondents.
WRIGHT, J.
The plaintiffs' intestate was lawfully passing through a public street in the city of New York, when he was struck on the head by a quantity of snow and ice thrown from the roof of the defendant's house, and killed. It was negligence, in the highest degree, to throw snow and ice from the roof of a building into a thoroughfare of a crowded city, without using some precaution against accidents. Instead of depositing the snow incumbering the roof in the yard attached to the premises of the defendant, it was cast into the street, without any warning of danger being given to passers-by. The defendant, in his answer, admits that, on the morning of the day the accident happened (having been apprised that the roof was leaking in consequence of a large quantity of snow having accumulated thereon), he directed his servant Fagan to remove the snow from the roof. No specific instructions were given in respect to the manner of doing the work. It was a general direction to clear the roof, as the defendant was leaving his house to attend to his business in the lower part of the city. The defendant was not present, nor did he superintend the work when it was done, but entrusted it solely to his servant, without a suggestion as to how it should be performed, or where the snow and ice should be deposited. It cannot be questioned that, under these circumstances, the defendant is liable for any injury resulting from the negligence of Fagan in performing the work entrusted to him; and it must be conceded that, if the identical body of snow and ice that descended upon the head of the deceased, and caused his death, was actually thrown by Fagan, though another person may have been aiding him in the work of clearing the roof, the defendant would be responsible. But it seems that one Patrick Cashan had
Page 360
volunteered to assist Fagan in removing the snow. For that purpose he had been admitted into the defendant's house, by the defendant's servant. He was aiding Fagan, undoubtedly without the knowledge or express authority of the defendant himself; but it is not to be assumed that he went upon the roof without the assent of the person or persons having charge or control of the defendant's house at the time. The evidence showed that Fagan and Cashan together were engaged in shoveling the snow from the roof when the accident occurred; but, whether the identical body of snow and ice that caused the death of Warner was thrown by Fagan or Cashan, was left in uncertainty. The fatal injury was evidently produced by ice being thrown on the head of the deceased. Fagan testified that he neither saw nor shoveled any ice; while Cashan testified that he saw a little ice on the roof near the trimming, but he knew that he threw it into the middle of the street. The injury occurred on the sidewalk in front of the defendant's house. The request, however, was, to submit to the jury to find whether the injury to Warner resulted from the act of Cashan or Fagan; and if from the act of Cashan, and they further found that he was employed by Fagan without the authority of the defendant, to instruct them that the defendant was not liable. In other words, as there was no pretence of any express authority from the defendant to employ Cashan to assist in the work, to instruct the jury that, if they should find that Cashan, and not Fagan, threw the identical shovelful of snow and ice that struck Warner, occasioning the fatal result, there could be no recovery. Whether it was an error of law to refuse so to charge, was the only question argued at bar, or of any difficulty in the case.
I am of the opinion that, under the conceded facts of the case, it was not error to refuse to charge as requested, and that it was immaterial, as affecting the defendant's liability, whether Fagan or Cashan actually threw that parcel of the snow and ice being removed from the roof which occasioned the fatal injury. In either view, it was, substantially, the act of Fagan, who had been charged by the defendant with the duty of clearing
Page 361
the roof. The defendant had given him general directions to throw the snow from the roof of his house, enjoining no caution and suggesting no mode of doing it, to prevent injury; nor placing the servant under any restriction against procuring aid in the work. I see not, therefore, why he was not entitled to procure aid, and invested with the power of exercising his own judgment as to the mode of doing the work. He selected Cashan to assist him, and introduced him into the defendant's house for that purpose, without objection from those having the charge and control of it. Provided with the defendant's tools, they engage together in the work, and in its progress one of them throws the deadly missile. Is this not substantially the act of Fagan? Fagan was present, aiding, directing and controlling Cashan, as much as he directed and controlled the shovel in his own hands. Nobody will doubt that, if he had thrown it with his own hands, the defendant would have been responsible. It can scarcely be less a negligent act of Fagan that it was thrown by a person whom he had requested to assist him in the employment in which they were mutually engaged, and who had been admitted upon the roof of the defendant's house without objection. InBooth v. Mister (7 Carr. & Payne, 66), the defendant was held liable for injuries to the plaintiff's cabriolet, resulting from the negligent manner in which the defendant's cart was driven, although it appeared that the defendant's servant was not driving at the time, but had entrusted the reins to a stranger who was riding with the servant, and not in the service of the defendant. The defendant's liability in that case was placed on the ground that the negligence causing the injury was substantially the act of the defendant's servant, who was in the cart, and the master had put it in the power of the servant to do the injury. It is very clear, in the present case, that the defendant put it in the power of Fagan to do the injury, and that, if he had not directed the latter to remove the snow from the roof, it could not have occurred. Nor could there have been any pretext for attributing the fatal result to the negligent act of Cashan, if the defendant's servant and household had not only voluntarily
Page 362
admitted him into the house, but solicited his assistance and services. Had Cashan gone upon the roof of the defendant's house without the knowledge or authority of the defendant or his family, and injured a passer-by, by throwing snow and ice upon him, nobody would pretend that the defendant would be liable; but the case assumes an entirely different aspect when it is conceded that he was there at the solicitation of Fagan, assisting him in a work...
To continue reading
Request your trial