Boylhart v. Di Marco & Reimann, Inc.

• Decision Date: 03 March 1936
• Citation: 270 N.Y. 217,200 N.E. 793
• Court: New York Court of Appeals Court of Appeals
• Parties: BOYLHART et al. v. DI MARCO & REIMANN, Inc., et al.

270 N.Y. 217

200 N.E. 793

BOYLHART et al.

v.DI MARCO & REIMANN, Inc., et al.

Court of Appeals of New York.

March 3, 1936.

Action by Richard Boylhart, by Gertrude Boylhart, his guardian ad litem, and Gertrude Boylhart, individually, against Di Marco & Reimann, Incorporated, and others. From the judgment of the Appellate Division, entered on June 24, 1935, in the office of the clerk of Bronx county, pursuant to the order of the Appellate Division (244 App.Div. 785, 280 N.Y.S. 781) entered on May 17, 1935, in the office of the clerk of the Appellate Division, and entered in the office of the clerk of Bronx county on May 21, 1935, affirming the judgment of the Supreme Court, Bronx county, which dismissed the complaint as to defendant named, and from that part of the judgment only, plaintiffs appeal.

Judgment of the Appellate Division and that of the Trial Term reversed, and verdict reinstated.

Appeal from Supreme Court, Appellate Division, First department.

Emil N. Baar, Arthur Block, James E. Whalen, and David E. Winer, all of New York City, for appellants.

William Dike Reed, of New York City, for respondent.

CROUCH, Judge.

The respondent, Di Marco & Reimann, Inc., contracted with the city of New York to construct part of a new subway. Under the contract, portions of the construction work might be sublet to subcontractors approvedby the city. The steel construction was so sublet to the Rosaire Contracting Company. The contractor was authorized by the city to occupy such portions of the street surface as might be necessary for the storage of materials. Certain steel beams to be used in the structure were stored on a neighboring street, insecurely piled by the subcontractor. The infant plaintiff with two companions were playing ‘follow the leader’ on and around the pile. While standing on the pile the leader ‘wiggled’ the beams, causing several of them to roll down the pile and injure the plaintiff. On the trial the plaintiff had a verdict against both the contractor and the subcontractor. Thereafter, the trial judge set aside the verdict and dismissed the complaint as against the contractor. The Appellate Division unanimously affirmed the judgment against the subcontractor and, by a divided court, affirmed the dismissal as to the contractor.

The only question which need be considered is whether the contractor, under the facts here, is subject to liability for the negligence of the subcontractor in piling the beams in the street. The applicable principle of law is well settled. ‘One employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it.’ Lord Blackburn in Dalton v. Angus & Co., 6 A.C. 740, 829. Compare American Law Institute, Restatement of the Law of Torts, c. 15, topic 2, and particularly § 417. The distinction between the two things is that in the one case the danger has its origin in an act of negligence collateral to the work, which could not be foreseen and guarded against beforehand, while in the other the danger is inherent in the work contracted to be done and might reasonably be expected. Hyman v. Barrett, 224 N.Y. 436, 439,121 N.E. 271. If the contractor leaves a pickaxe in the road (Penny v. Wimbledon Urban District Council, [1899] 2 Q.B. 72, 78), or negligently drops a stone from a bridge under construction over a highway (Reedie v. London & N. W. Ry. Co., 4 Exch. 244), or negligently fires a blast (Herrington v. Village of Lansingburgh, 110 N.Y. 145, 17 N. E....