Hardie v. Charles P. Boland Co.

• Decision Date: 30 April 1912
• Citation: 205 N.Y. 336,98 N.E. 661
• Parties: HARDIE et al. v. CHARLES P. BOLAND CO.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 336

98 N.E. 661

HARDIE et al.

v.CHARLES P. BOLAND CO.

Court of Appeals of New York.

April 30, 1912.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Margaret Hardie and others, as administrators of William Hardie, deceased, against the Charles P. Boland Company. From a judgment of the Appellate Division (147 App. Div. 926,131 N. Y. Supp. 1119) affirming a judgment for plaintiffs, defendant appeals. Reversed.Benjamin Reass, of New York City, for appellant.

John B. Holmes, of Troy, for respondents.

WERNER, J.

The intestate of the plaintiffs met his death on the 6th day of October, 1909, through the collapse of a chimney which he was engaged in ‘pointing’ or finishing as an employe of the defendant, an independent contractor. The falling chimney carried with it the scaffold upon which the deceased was at work, and he was thrown to the ground, from a height of about 50 feet, with such force as to cause instant death. His representatives seek to hold his employer responsible in damages, and at Trial Term they recovered a verdict which the Appellate Division has upheld by a divided court.

The important question upon this appeal is whether the rule of res ipsa loquitur applies, for that is the theory upon which the case was submitted to the jury, and the applicability of that rule depends upon a few facts as to which there is no dispute.

The complaint is framed upon the dual hypothesis that there was fault in the construction of the chimney, and of the scaffolding built around it, as well as negligence in the conduct of other work which caused the chimney to fall. It contains no specifications as to the alleged faults of construction in the chimney and scaffold beyond the general statement that the chimney was constructed in a defective, dangerous, and careless manner, and that the scaffold was unsafe, unsuitable, and improper, but it specifies with particularity, as one ground of negligence, that the defendant negligently attempted to break a large concrete lintel by raising it with a derrick and then dropping it to the earth, thus violently jarring the foundations of the chimney, and causing it and the scaffold to fall.

The evidence introduced in support of these allegations need not be considered in detail. There was testimony designed to establish the defendant's negligence in breaking the concrete lintel by dropping ti from such a height as to shake the foundations of the adjacent structures, including the chimney in which the mortar was still fresh and unset. There was also some testimony in support of the contention that the defendant had been negligent in omitting to construct a roof brace for the chimney. The case was not submitted upon either of these theories, however, but upon the distinct instruction ‘that the thing itself is a witness' and ‘calls upon the defendant to make an explanation if it can.’ In referring to the rule of res ipsa loquitur, the court charged: ‘When that doctrine is applicable to a case, it means that there is a presumption that there was some defect, and that the defendant would be able to explain the cause of the fall, what the defect was, better than the other party. It is therefore in the nature of circumstantial evidence that you will consider it, the fact of this fall without explanation, and it calls upon the defendant to make an explanation if it can.’ And, as if to emphasize this instruction, the court charged: ‘In this case there is no question of defective scaffold; there is no question of defective materials furnished to build this chimney with; no question of the skill of the men who actually did the work of laying the stones and brick; no question as to the cement or mortar whichever it was that was used. These materials were right and proper, so far as the proof shows, and you must therefore accept them as such.’ The plain inference to be drawn from these instructions is that the jury were not to consider the defendant as chargeable with negligence in respect of the quality or character of the materials and workmanship that entered into the construction of the chimney, but that negligence was imputable to the defendant if there was any fault in the form or plan of the chimney, and that the mere fall of the chimney, unexplained by the defendant, was evidence of such negligence. The error in these instructions, concerning the rule of res ipsa loquitur, will be clear to us all when we consider a few further facts.

[1] The chimney which collapsed was part of a building which the defendant, as contractor, was erecting in accordance with plans made by architects who were employed by the owners of the premises. If it be assumed that the plan relating to this chimney was defective, and that the chimney collapsed solely because of the defects in the plan, the mere happening of the accident proves...