Herrington v. Village of Lansingburgh

• Decision Date: 19 June 1888
• Citation: 110 N.Y. 145,17 N.E. 728
• Parties: HERRINGTON v. VILLAGE OF LANSINGBURGH.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 145

17 N.E. 728

HERRINGTON

v.VILLAGE OF LANSINGBURGH.¹

Court of Appeals of New York.

June 19, 1888.

Appeal from general term, supreme court, Third department.

DANFORTH, J., dissenting.

Edgar L. Fursman, for appellant.

Henry A. Merritt, for respondent.

EARL, J.

The defendant is a municipal corporation, and by its charter is clothed with power to cause the construction of sewers. On the 23d day of October, 1878, it made and entered into a contract in writing with Broderick & Ellis for the construction of a sewer in and through one of its streets called ‘State Street.’ The specifications for the work provided that all damage arising from blasting to be done in the construction of the sewer should be paid for by the contractors. State street crossed Market street at right angles. On the 7th day of December, 1878, the plaintiff came into the village with a team, and tied his horses to a post in Market street about 15 feet from State street, in front of a grocery, and went into the grocery, and while there the contractors fired a blast in State street, which frightened the team. The plaintiff rushed from the grocery, and, while attempting to control the team, was severely injured. The place where the blast was fired was about 200 feet from Market street, and the team where it was fastened in Market street was not visible from the place of the blasting. The claim of the plaintiff is that the defendant is responsible to him for the injury he sustained in consequence of the frightening of the horses by the blast. At the place where the horses were fastened the street was in perfect condition, and the horses did not become restless or frightened from anything existing in the street, and the accident was in no way caused by any imperfect condition of the street, but simply by noise resulting from the blast. If there was any culpable carelessness which caused the injury to the plaintiff, it was that of the contractors. They had entire control of the work, and the manner of its performance.They could choose their own time for firing the blasts, and select their own agents and instrumentality. They could make the charges of powder large or small, and they could in some degree smother the blasts, so as to prevent falling rocks, and much of the noise of the explosion, or they could carelessly omit all precautions, and for the consequences of their negligence they alone would be responsible. If it was a prudent thing to notify persons in the...