Hogle v. H.H. Eranklin Mfg. Co.

• Decision Date: 25 October 1910
• Citation: 199 N.Y. 388,92 N.E. 794
• Parties: HOGLE v. H. H. ERANKLIN MFG. CO.
• Court: New York Court of Appeals Court of Appeals

199 N.Y. 388

92 N.E. 794

HOGLE

v.H. H. ERANKLIN MFG. CO.

Court of Appeals of New York.

Oct. 25, 1910.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Mary A. Hogle against the H. H. Franklin Manufacturing Company. From a judgment of the Appellate Division (128 App. Div. 403, 112 N. U. Supp. 881) affirming a judgment for plaintiff, defendant appeals. Affirmed.

For several years prior to the 21st of August, 1906, the plaintiff resided with her husband in a house on West Marcellus street in the city of Syracuse; the lease from James Doheny, the owner, being in the husband's name as lessee. The lot upon which the house stands is 34 by 100 feet, and the rear thereof adjoins the land of the defendant, upon which there is a large building several hundred feet long used for the manufacture of automobiles. Between the lot on which the defendant's factory stands and the lot occupied by the plaintiff and her husband, which for convenience will be called the ‘plaintiff's lot,’ there is a vacant space 10 feet wide which is not used for storage or dumping purposes, or for any purpose except the admission of light and air. At the rear of plaintiff's lot is a tight board fence 6 feet high, and the space between the fence and her house, 20 by 34 feet, is used as a garden. Each floor of the factory has windows overlooking the plaintiff's premises, and on each of said floors are many mechanics and laborers in the employ of the defendant.

For 18 months prior to the 21st of August, 1906, the employés of the defendant had habitually thrown small pieces of iron, such as nuts, the ends of bolts, and the like, from the upper windows of its factory upon the rear of the plaintiff's lot. Mr. Hogle, who was not at home much in the daytime, saw such objects thrown from the third story of the factory at least a dozen times, some of which struck his house and others fell in the yard at the rear. This was after 6 o'clock in the evening, but when the men were still at work in the factory. He took a handful of the nuts and bolts collected from the garden to Mr. Franklin, the president of the defendant, stated the facts to him, and said he wanted the practice stopped, for he was afraid some one would get hurt. Mr. Franklin replied that he was glad to learn what had happened and would see that it was stopped. Mr. Doheny, the lessor of the plaintiff, complained on several occasions to the assistant manager of the defendant, who said he would do all he could to stop the annoyance.

The practice, however, continued and in creased, although Mr. Franklin and his foreman forbade it and threatened to discharge any one who was seen to throw anything upon the plaintiff's lot. A little son of the plaintiff was hit by a nut when playing in the backyard. On another occasion a pail of dirty water was thrown upon him, and on still another tobacco spittle hit him on the head. Mrs. Hogle testified that she saw nuts, pieces of bolts, etc., thrown on her lot and at the children playing there on the average once a day from the spring of 1905 until in August, 1906. Once she saw a rattail file thrown from the window on the third floor and saw it pass over her little boy and strike the ground behind him. These objects, which for convenience counsel called ‘missiles,’ came from the windows of defendant's factory and mainly from those on the third floor. She saw many of them when they were thrown by defendant's workmen from the windows of its factory.

On the 21st of August, 1906, she went out into her garden and looking up saw men at work and heard them talking by the windows of the third floor, which were open. As she was kneeling on one knee about 10 feet from the rear of her lot to pull some radishes, she caught a side glance of some object coming from the direction of the third floor, and at once was hit by a piece of iron upon her arm just below the shoulder. She produced the iron in court, and the injury inflicted thereby was somewhat severe.

Upon the first trial, when the complaint was based wholly on negligence, she had a verdict, which was set aside by the trial justice upon the ground that, as the acts of the defendant's workmen were not done within the scope of their employment, an action for negligence would not lie; but it was pointedly suggested in the opinion that an action for nuisance was the proper remedy. The complaint was thereupon so amended as to rest both on negligence and nuisance. Upon the second trial, also, the plaintiff had a verdict, and the judgment entered thereon was affirmed by the Appellate Division; one of the justices dissenting. The defendant now appeals to this court.Jerome L. Cheney, for appellant.

Frank C. Sargent, for respondent.

VANN, J. (after stating the facts as above).

The theory upon which the case was sent to the jury upon the second trial is shown by the following extracts from the charge of the trial justice: ‘I do not intend to talk to you about negligence, or about a nuisance, or about any other subject with a technical name. I want you to consider simply, in the light of common sense, what is due from one man to another, from one neighbor to another. * * * If my servant repeatedly, with my knowledge, even if he is not engaged in my business, throws stones at you and injures you, I should do what I reasonably can to prevent that act on his part. In the first place, the servant is subject to my control. In the second place, he is occupying my land, and from it he is committing a trespass upon yours; he is using my personal property to help along in that trespass, and he is where he is and is able to commit that trespass because of my act in putting him there and keeping him there. * * * If you find that the plaintiff was injured as she claims, and if you find that these trespasses were repeatedly and continuously committed by persons upon the defendant's property, the defendant concededly having notice that these trespasses were being committed, I say it is a question for you to determine whether or not the defendant used such reasonable efforts as it should have used to prevent their recurrence, and so is liable because their recurrence was not prevented and because as a result the plaintiff received this injury of which she complains.’

As the Appellate Division held, and as we think, the evidence warranted the jury in finding that the piece of iron which injured the plaintiff was maliciously thrown from a window of the defendant's factory by one of its workmen, and that for more than a year it had been the practice of its workmen, maliciously, or in a spirit of mischief, to throw similar objects from the windows of its factory upon the premises adjoining where plaintiff lived, with the knowledge of the defendant, but without its consent and in violation of its orders.

The defendant contends-and its motion for a nonsuit was based on the ground-‘that there can be no recovery in this case unless the jury should find that this piece of iron was thrown upon plaintiff's premises as a necessary consequence of the work being carried on there or as an incident to it.’ The refusal to so hold is the main assignment of error on this appeal.

While we all think that the recovery should be sustained we differ somewhat as to the exact theory upon which it should be based. No request that the plaintiff should elect between the theory of nuisance and that of negligence was made at the trial, and the...