Holland House Co. v. Baird

• Decision Date: 20 December 1901
• Citation: 169 N.Y. 136,62 N.E. 149
• Parties: HOLLAND HOUSE CO. v. BAIRD.
• Court: New York Court of Appeals Court of Appeals

169 N.Y. 136

62 N.E. 149

HOLLAND HOUSE CO.

v.BAIRD.

Court of Appeals of New York.

Dec. 20, 1901.

Appeal from supreme court, appellate division, First department.

Action by the Holland House Company against William P. Baird. From an order of the appellate division (63 N. Y. Supp. 73) reversing a judgment for defendant entered on dismissal of the complaint and granting a new trial, defendant appeals. Revered.

J. Woolsey Shepard, for appellant.

Aaron C. Thayer and George M. Pinney, Jr., for respondent.

GRAY, J.

The plaintiff is the owner of the Holland House, a hotel building situated on the southwest corner of Fifth avenueand Thirtieth street, in the city of New York. By the complaint in this action the defendant is charged with a failure to exercise due care, and with being negligent, in the blasting of rock, while engaged upon the work of excavating a trench for the laying of water pipes in Fifth avenue, whereby a vault of the building, constructed under the sidewalk, was damaged in an amount specified. The answer of the defendant put in issue these allegations. Upon the trial of the issues a contract was first put in evidence, which was made in August, 1896, between the municipality and the defendant, for the laying of water mains on the west side of Fifth avenue from Eightieth street to Fourth street, and which provided, among other things, for blasting to be conducted in conformity with the city ordinances upon the subject. The defendant admitted having done the work under this contract. After this proof had been made, the plaintiff then called three witnesses to show the occurrence in August, 1897, which caused the injury complained of. The first witness was a barber employed in a barber shop in the vault in question, and he testified that during August, 1897, ‘while the trench was being dug on Fifth avenue’ he ‘heard a good many sounds as of blasting,’ and that on a certain day he ‘heard a heavy shock,’ but he could not remember the day. He then proceeded to describe the damage resulting to the interior of the vault. The next witness was a brush boy in the barber shop, who testified that during August he heard the noise of the blasting there, and that he ‘heard one sound that impressed itself on his mind. It was a big blast.’ He could not recollect the particular day. The third witness was the proprietor of the barber shop, who testified that ‘when the contractor came alongside of the Holland House, on Fifth avenue, the blasting made a rumbling noise, * * * but one day there was a terrific blast, and it shook the front of the house’; and he proceeded to describe the damage that was done to the walls, fixtures, or plumbing, etc. After these witnesses, several other witnesses were examined upon the subjects of the damage appearing within the vault, of the repairs made, and of their cost. None of the witnesses identified the defendant as the contractor, or as causing the blasts; nor did any witness give any testimony locating or describing any work in which the blasting was being done. Then a civil engineer was examined as a witness, who gave his experience in the work of blasting for the purpose of excavations, and stated how such blasting work was usually done by explosives. In substance, it was that the amount and character of the explosives necessary for such work, and the depth of the holes, would vary with the nature of the work to be done. They would be influenced by the surrounding conditions, the width of the trench, and the quality of the rock,-whether soft or hard. He was asked the question: ‘Assuming that you had to do blasting in a street in front of a ten-story building, and there being a vault wall a few feet away from this trench that was being dug, where it was necessary to blast, could you, in your opinion, so adjust the size of the charge that no damage would be done to the vault wall? Whether that could ordinarily be done?’ He answered: ‘I think so.’ He said that he knew nothing about the quality of the rock which was blasted in front of the Holland House, and had never seen the trench. At the close of the plaintiff's evidence, the court, remarking that it was necessary for the plaintiff to go further, and to show just how the work was done, so that it might appear that it could have been done in a way to have avoided these concussions, dismissed the complaint ‘on the ground that there is not sufficient evidence to sustain the allegations of the complaint; no negligence having been proved.’ The judgment entered upon the nonsuit was reversed by the appellate division, and a new trial was ordered; and the only question upon this appeal, of importance, is with respect to the correctness of the ruling by the trial court.

It might be observed, in the first place, that the plaintiff's evidence was very defective upon the question whether the blasting which caused the damage was done by the defendant, and that was the view taken by dissenting judges at the appellate division. While it was conceded by the defendant that the work called for by his contract with the city had been performed, it was not made to appear by direct...