Haefeli v. Woodrich Engineering Co., Inc.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: KELLOGG
• Citation: Haefeli v. Woodrich Engineering Co., Inc., 255 N.Y. 442 (N.Y. 1931)
• Decision Date: 10 February 1931
• Parties: ANNA S. HAEFELI, as Administratrix of the Estate of EDWARD HAEFELI, Deceased, Appellant, v. WOODRICH ENGINEERING COMPANY, INC., et al., Respondents.

255 N.Y. 442

175 N.E. 123

HAEFELI

v.WOODRICH ENGINEERING CO., Inc., et al.

Court of Appeals of New York.

Feb. 10, 1931.

Action by Anna S. Haefeli, as administratrix of the goods, chattels, and credits of Edward Haefeli, deceased, against the Woodrich Engineering Company, Incorporated, and Philip H. Dein. From a judgment of the Appellate Division (229 App. Div. 742, 241 N. Y. S. 896), reversing, as a matter of law, a judgment entered on the verdict of a jury for plaintiff and granting a new trial, plaintiff appeals.

Appellate Division's judgment affirmed as to defendant last named, and reversed as to defendant first named, and trial court's judgment affirmed.

CRANE, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

Joseph M. Proskauer, J. Alvin Van Bergh, Jesse, L. Rosenberg, and Irving Ditchik, all of New York City, for appellant.

James C. Van Siclen, Edgar J. Treacy and William F. Ryan, all of New York City, for respondents.

KELLOGG, J.

Edward Haefeli and Arnold McDonald, partners in the scavenger business, contracted to clean a cesspool maintained by the Woodrich Engineering Company, Inc. While Haefeli was stationed in the cesspool shoveling the sludge into pails, the arched top of the cesspool fell in, causing his death. This action was thereafter brought, by the administratrix of the estate of Edward Haefeli, to recover damages for his death, against the Woodrich Engineering Company and its president, Philip H. Dein. The complaint charged these defendants with negligence in the construction and maintenance of the cesspool. A verdict for a substantial sum was recovered against both defendants.

On an appeal to the Appellate Division, that court handed down a memorandum of decision reversing the judgment entered upon the verdict ‘upon the law and the facts,’ and granted a new trial. The memorandum stated: ‘We are of opinion that the charge, in its entirety, failed to state adequately the duty of the defendants with respect to the maintenance of the cesspool and the duty of the decedent in using it.’ 229 App. Div. 742, 241 N. Y. S. 896, 897. Subsequently, the order of reversal was resettled to read that the judgment was ‘reversed upon the law * * * and a new trial granted,’ and judgment was entered accordingly. 229 App. Div. 742, 241 N. Y. S. 896.

There is no rule of the common law, and in this state no statutory command, requiring a trial judge to give instructions to a jury in a civil case in respect to every legal proposition which may be pertinent to the issues. Jones v. State of Ohio, 20 Ohio, 34;State v. Straw, 33 Me. 554;Kent v. Tyson, 20 N. H. 121;Hall v. Weir, 1 Allen (Mass.) 261;Davis v. Elliott, 15 Gray (81 Mass.) 90;Bain v. Doran, 54 Pa. 124;Pennock v. Dialogue, 2 Pet. 1, 7 L. Ed. 327;Parsons v. Brown, 15 Barb. 590. ‘In general, then, while misdirection is error, non-direction is not.’ Thompson on Trials, § 2346. The English courts hold that ‘nondirection is only a ground for granting a new trial where it produces a verdict against the evidence.’ Great Western Railway v. Fawcett, 8 Law T. 31. Doubtless an appellate division, for lack of a charge or its insufficiency, upon an appeal from an order denying a new trial, deeming that a fair trial has not been had, may in its discretion reverse and order the case retried. McKellar v. American Synthetic Dyes, 229 N. Y. 106, 127 N. E. 895;Muldoon v. Dock Contractor Co., 199 App. Div. 733, 192 N. Y. S. 19;Haas v. King, 216 App. Div. 821, 215 N. Y. S. 641. However, no error of law is involved unless the trial judge, upon a specific request, had declined to give appropriate instructions. Consequently, the reversal here, expressed to be ‘upon the law,’ may not be sustained, unless for error (1) in denying a motion to dismiss, (2) in receiving incompetent or rejecting competent evidence, or (3) in delivering incorrect instructions or refusing to charge correctly.

The cesspool, through the collapse of which Haefeli met his death, was circular in form with an arched top. Its greatest diameter was eight feet; its depth was fifteen feet. It was walled up with round or oblong stones, without cement, for a height of seven feet. From this point upward the walls of the structure were made to taper in to form an arch or dome. Round or oblong stones were employed to make the arch, as they had been to form the walls below. At the center of the arch an opening or manhole two feet square was made to appear. Over the manhole a flagstone was placed; over the arch and flagstone, after the structure had been completed, dirt to the depth of three feet, a mass totaling ten tons in weight, was piled. Several witnesses testified that the stone, taken from the cesspool after the cave-in, showed no signs that concrete had been applied when they were laid in the arch. Others saw traces of cement upon some of the stone. A witness who superintended the construction of the cesspool on behalf of the Woodrich Engineering Company, Inc., said that concrete had been applied. What the quantities were; what proportion of cement the mixture contained; how the mixture was applied-to these questions the record supplies no answer. It has been said that, ‘Buildings properly constructed do not fall without adequate cause’ (Mullen v. St. John, 57 N. Y. 567, 569,15 Am. Rep. 530); that a ‘falling wall is evidence that there was negligence on the part of some one’ (Hooey v. Airport Construction Co., 253 N. Y. 486, 489, 171 N. E. 752, 753).In the absence of earthquake, storm, tempest, or external violence of any kind (Mullen v. St. John, supra), the arch of the cesspool must have fallen because it was defectively constructed to bear the load which was placed upon it.

It is undisputed that the semisolids contained in a leaching cesspool must frequently be removed; that cleaners must frequently descend into the cesspool to shovel the sludge into pails that it may be removed. The constructor of the cesspool must reasonably anticipate that these things will be done and must reasonably provide for the safety of those who do them. It is said that the constructor, in this instance, could not reasonably have anticipated that the cesspool would be entered by means of a ladder, as Haefeli entered it; and, therefore, was not required to make the cesspool safe for such an entry. This suggestion is based upon the testimony of a single witness who said that the usual method of entry was by means of a rope held by men standing at the brink of the manhole rather than by a ladder. The sole reason which the witness gave for this practice was the avoidance of a danger that the foot of an inserted ladder might strike the uncemented stones of the vertical walls and cause them to be dislodged. In our case it is undisputed that the ladder which Haefeli descended was inserted and held in a position almost vertical. Consequently, the peril to which the witness made allusion was in this instance avoided. No testimony was given to indicate that the weight of a man, descending upon a ladder held in a position almost vertical, will create a thrust against the side of the manhole, causing a greater strain upon the arch than the vertical thrust, which would be caused by the weight of several men standing at the edge of the opening to lower a cleaner upon a rope. Moreover, in opposition to the testimony thus given, the city inspector, by whom permits for the cleaning of cesspools were given, stated that while the department did not advocate the use of a ladder, ‘we do not say they must not use it, but it is up to their own volition.’ We think that the jury may reasonably have inferred that the cesspool was not designed or constructed to bear a load upon it which might reasonably have been anticipated; that there was negligence involved in its design or construction.

All nontrespassing visitors upon the lands of another, for the purpose of determining the relative duties of the occupant towards them, are classified either as ‘gratuitous licensees' or ‘business visitors.’ Restatement of the Law of Torts, Am. Law Institute, §§ 201, 202. The ‘business visitor’ is one who comes upon the land, at the instance of the occupant, for purposes ‘directly or indirectly connected with any purpose, business or otherwise, for which the possessor uses the land.’ Id., § 202. Haefeli and McDonald, invited by the Woodrich Engineering Company, Inc., the possessor of the cesspool, to enter and clean it for a price, were clearly there upon the business of the occupant, and were, therefore, business visitors. A business visitor ‘is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know.’ Indermaur v. Dames, 14 Law T. 484. ‘The owners in such a case are bound to see that the premises are reasonably safe, and if they are not safe, and the owners could know of the dangerous condition and negligently did not know of it, they are liable for damages caused.’ Sutcliffe v. Clients Investment Co., [1924] 2 K. B. 746. An occupant of land owes to the servants of an independent contractor, employed to do work thereon, the duty of exercising ordinary care to render the premises reasonably safe for the performance of the work. Sommer v. Public Service Corp., 79 N. J. Law, 349, 75 A. 892;Richards v. Consolidated Lighting Co., 90 Vt. 552, 99 A. 241;Spry Lumber Co. v. Duggan, 182 Ill. 218, 54 N. E. 1002;Crimmins v. Booth, 202 Mass. 17, 88 N. E. 449,132 Am. St. Rep. 468;Pauckner v. Wakem, 231 Ill. 276, 83 N. E. 202,14 L. R. A. (N. S.) 1118;Hupfer v. National Distilling Co., 114 Wis. 279, 90 N. W. 191;Galvin v. Mayor, etc., of New York, 112 N. Y. 223, 19 N. E. 675;Quinn v. Staten Island Rapid Transit Ry. Co., 224 N. Y. 493, 121 N. E. 340. If such a duty is owed to the employees of an independent contractor, all the more is it owing to the contractor himself, for the latter has contractual relations directly with the occupant while the...