Herman v. City of Buffalo

• Decision Date: 25 February 1915
• Citation: 108 N.E. 451,214 N.Y. 316
• Parties: HERMAN v. CITY OF BUFFALO et al.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 316

108 N.E. 451

HERMAN

v.CITY OF BUFFALO et al.

Court of Appeals of New York.

Feb. 25, 1915.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Louise M. Herman, as administratrix, against the city of Buffalo and others. From a judgment of the Appellate Division (157 App. Div. 819,143 N. Y. Supp. 205) affirming a judgment in favor of plaintiff, defendant named appeals. Reversed.Clark H. Hammond, Corp. Counsel, of Buffalo (George E. Pierce, of Buffalo, of counsel), for appellant.

Charles L. Feldman, of Buffalo, for respondent.

COLLIN, J.

Thus far, it has been adjudged that the appellant, city of Buffalo, created or participated in the creation of a nuisance which caused the death of the respondent's intestate, and is liable to her for the resulting damages.

The alleged nuisance was a partially erected engine house. The foundation walls, the steel columns thereon supporting the trusses the roof were constructed or placed when it the foof were constructed or placed when it collapsed while the intestate was at work upon the roof. Two contractors with the appellant for the construction, one subcontractor, and the architect and superintendent of the construction were defendants with the appellant. The verdict was in favor of the defendants other than the appellant. Inasmuch as the judgment of the Appellate Division affirming that of the Trial Term was not unanimous, we must ascertain by a scrutiny of the evidence whether or not there was any proof permitting the jury to return a verdict in favor of the plaintiff. Heskell v. Auburn L., H. & P. Co., 209 N . Y. 86, 102 N. E. 540.

[1][2] The appellant does not either in brief or argument assert that the city of Buffalo is immune, as a governmental agent, from legal responsibility and liability in case it, in the erection of the engine house, created or participated in the creation of a nuisance. It is not so immune. Oakes Manfg. Co. v. City of New York, 206 N. Y. 221, 99 N. E. 540,42 L. R. A. (N. S .) 286;Landau v. City of New York, 180 N. Y. 48, 72 N. E. 631,105 Am. St. Rep. 709;Wilcox v. City of Rochester, 190 N. Y. 137, 82 N. E. 1119,17 L. R. A. (N. S.) 741,13 Ann. Cas. 759. Under the facts disclosed by the record, it was correctly held that the intestate was iawfully upon the building, and his death charged liability upon the defendant, provided it was a nuisance, and the appellant had participated in making it such. The creator of a nuisance upon his land is liable to persons lawfully upon it whom the nuisance injures.

Before considering the evidence, there should be an ascertainment of the facts essential to constitute the structure a nuisance as to the intestate. The appellant owned and possessed the land upon which it stood, and had contracted for its erection. The intestate, a subcontractor, was at work upon it. We are to determine, therefore, the fundamental or elemental facts needful to constitute the structure a nuisance, through and because of the method or concitions of construction, between the owner and the intestate rightfully upon it.

[3][4][5][6] The structure must have been inherently and imminently dangerous and a menace to the safety of the intestate. Cochran v . Sess, 168 N. Y. 372, 61 N. E. 639;Melker v. City of New York, 190 N. Y. 481, 83 N. E. 565,16 L. R. A. (N. S.) 621,13 Ann. Cas. 544.

The appellant must have created or participated in the creation of the dangerous and menacing condition. The building had not become ruinous and unsafe through prolonged existence or other analogous causes. The respondent does not claim that the architect or either of the contractors or subcontractors was incompetent or unfit. While the appellant is answerable for the acts of its servants and employés, it is not liable for the negligent or wrongful acts of the competent independent contractors or of the subcontractors or their servants. An owner is not liable to third persons for the injurious acts of a competent independent contractor or of a subcontractor, unless the acts are imposed by statute upon the owner and cannot be delegated so as to exempt him from liability, or the contract in and of itself is unlawful, or the thing contracted to be done is necessarily unlawful or wrongful, or the injury is a direct and natural result from the work required of the independent contractor either by the contract or the direction of the owner. Burke v. Ireland, 166 N. Y. 305, 59 N. E. 914;Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052,33 Am. St. Rep. 692;Hexamer v. Webb, 101 N. Y. 377,4 N. E. 775, 54 Am. Rep. 703; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181, 23 Am. Rep. 37. An owner may also, through ratification or adoption, become responsible for the negligent or wrongful acts of the independent contractor . Vogel v. Mayor, etc., of N. Y., 92 N. Y. 10, 44 Am. Rep. 349. The fact that the owner, through an architect and superintendent of construction or other agent, exercises a general supervision of the work and construction, does not affect the rule of exemption from liability, wher that is only for the purpose of assurance that the contract is being performed. Uppington v. City of New York, 165 N. Y. 222, 59 N. E . 91,53 L. R. A. 550.

[7][8] The creation or participation in the creation of the dangerous condition must have been with the consciousness and understanding on the part of the appellant that it was creating it; or it must have been obvious and almost certain to a reasonably prudent man, while the acts were being performed on the part of the appellant, that those acts would create of help to create it. The condition must have been a purpose or object of the appellant; it must have intended to effect it; or its acts have been so reckless and unwarranted that that intention must be conclusively implied. This is not declaring that it must have intended the danger or the catastrophe. It must have intended the condition, but, having that intention, may have thought it was not dangerous or have been thoughtless in regard to it. It must have violated the absolute duty of refraining from the participating acts, not merely the relative duty of exercising reasonable care, foresight, and prudence in their performance. The wrongfulness must have been in the acts themselves, rather than in the failure to use the requisite degree of care in doing them, and therein lies the distinction, under the facts of this case, between ‘nuisance’ and ‘negligence .’ The one is a violation of an absolute duty; the other a failure to use the degree of care required in the particular circumstances-a violation of a relative duty. A nuisance may be created or maintained with the highest degree of care, and the negligenceof a defendant, unless in exceptional cases, is not material. To illustrate: Because the distinction is narrow in basis and operation, in case the appellant had applied to the eastern side of the wall, after the columns and trusses were placed, powerful presses for the purpose of moving it, and the natural and obvious effect of the moving was a collapse, it would have committed a wrongful act, because it intended the dangerous condition, violated the absolute duty of refraining from intentionally moving the wall, created a nuisance, and been absolutely liable, regardless of the degree of care with which the presses were placed and applied, to a third person rightfully upon the structure and injured by its collapse. If the filling of the excavation upon the east of the wall, hereinafter described, were for the purpose and with the intention of pushing the wall into the deflection, the appellant caused the nuisance; if it were for the purpose of obliterating the excavation, the appellant did not cause a nuisance, unless it obviously and almost certainly to a reasonably prudent man would have deflected the wall, and a lack of requisite care would be the sole basis of its liability. Hogle v. Franklin Manfg. Co., 199 N. Y. 388, 92 N. E. 794,32 L. R. A. (N. S.) 1038;Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052,33 Am. St. Rep. 692;Lamming v. Galusha, 135 N. Y. 239, 31 N. E. 1024.

[9][10] We turn to the evidence to ascertain whether or not each of the three essential facts has support therein. It may be stated, without discussion, that it permitted the jury to find that the structure was inherently and imminently dangerous, and that the acts of the...