7 N.Y. 493, City of Buffalo v. Holloway

Citation:7 N.Y. 493
Case Date:December 01, 1852
Court:New York Court of Appeals

Page 493

7 N.Y. 493




New York Court of Appeal

December 1, 1852 1

Page 494


C. O. Pool, for appellant.

The complaint charges that it was the duty of the defendant to erect, maintain and keep lights, guards and barriers about and in the vicinity of the pit he had dug and thus protect persons lawfully passing on Elk street from falling therein; and that he wrongfully, carelessly and improperly left it unguarded, and in consequence thereof Tripp fell into the pit, was injured, and recovered damages for the injury from the city. The defendant by his demurrer admits this statement of facts, and with it the plaintiff's right of action.

Page 495

II. The city of Buffalo is liable for injuries to third persons occasioned by the negligence or unskillfulness of its agents or contractors in the construction of its public works.

III. Whenever the principal or master is compelled to make compensation to a third person for injuries resulting from carelessness or negligence of an agent or servant, such agent or servant is liable to the principal or master on the ground of respondeat superior (Reeves Dom. Rel. 377; Lowell v. Boston & Lowell R. R. Co. 23 Pick. 24; Lowell v. Short, 4 Cush. 275; id. v. Spaulding, do. 277).

IV. The pit dug by the defendant was his own act and not the plaintiff's. It was a public nuisance, and any person or corporation sustaining special damages in consequence thereof, can maintain an action against the defendant for creating it, he being the principal wrong doer.

J. Janson, for respondent.

I. It does not appear by the complaint that the defendant assumed by any express contract to indemnify the plaintiff against damages which third persons might sustain from his negligence or otherwise, and he must therefore be held liable, if at all, to protect the plaintiff from such damages either by an implied contract, or from the relation existing between the parties.

II. But the only implied contract arising from the agreement set forth in the complaint is, that the work to be done shall be performed in a workmanlike manner, according to the specifications and requirements therein contained. In the performance of the agreement, nothing can be required to be done save such things as are expressly agreed to be done. The claim is not that damages have been sustained by reason of a defective performance of the work stipulated to be done, but for an omission to do something not stipulated to be done, which the plaintiff avers the defendant ought not to have left undone. The averment in the complaint that it was the defendant's duty to maintain lights or barriers around the pit is...

To continue reading