Leeds v. New York Tel. Co.

• Decision Date: 22 March 1904
• Citation: 70 N.E. 219,178 N.Y. 118
• Parties: LEEDS v. NEW YORK TELEPHONE CO.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 118

70 N.E. 219

LEEDS

v.NEW YORK TELEPHONE CO.

Court of Appeals of New York.

March 22, 1904.

Appeal from Supreme Court, Appellate Division; Second Department.

Action by Florence S. Leeds against the New York Telephone Company. From a judgment of the Appellate Division (80 N. Y. Supp. 114) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Vann, Cullen, and Werner, JJ., dissenting.

Eugene Lamb Richards, Jr., for appellant.

Louis Hicks, for respondent.

GRAY, J.

The plaintiff, while walking upon a street of the city of New York, was struck by bricks falling from a chimney, and she has sued the defendant for damages, upon allegations that its negligence was the cause of her injuries. The material facts may be briefly stated. One of the telephone wires of the defendant was attached to the chimney of a house at a height of some 39 feet above the ground, and thence was extended over the street and beyond to the roof of a building at a height of about 100 feet from the ground. The wire had been in that position for two years, with the permission of the municipal authorities, when the construction of a steel-frame building was commenced by the Jackson Architectural Ironworks on the side of the street opposite to the house from whose chimney the wire extended. On the third floor of the building in course of construction a derrick was placed for the purpose of lifting up materials for the framework. The mast of the derrick was 65 feet high, and the boom of the derrick was 55 feet in length, and was in such a position as to project beyond the sidewalk and 15 feet over the roadway of the street. A steel girder was being lifted by means of attachments from the end of the boom, and through some careless handling was allowed to swing against the wire with sufficient force to pull the chimney over. Some of the bricks fell upon the plaintiff, and produced the injuries complained of. There was evidence that the chimney had been weakened by age and decay, and the negligence of the defendant in maintaining its wire upon it, under the circumstances, is alleged, and is relied upon, as constituting an efficient and the approximate cause of the injury sustained.

I am not able to agree in this view, and, in my opinion, the negligence of the ironworks was an intervening, and the responsible, cause of the accident. The theory of defendant's negligence must rest upon the proposition that in the condition of the chimney, which inspection would have disclosed, the defendant should have foreseen possible interference with its wire in the course of the building operations on the other side of the street, and the possible consequence to the chimney. An apparent vice in this proposition is the assumption that, had the chimney been different, or newer, or sounder in its construction, it would have been able successfully to resist the strain caused by the blow of the great derrick boom against the wire. I doubt that we can indulge in such an assumption in order to find a concurring act or omission of duty. It seems to me that guilty or responsible concurrence in causing an injury involves the idea of two or more active agencies co-operating to produce it, either of which must be an efficient cause, without the operation of which the accident would not have happened. There few cases will suffice for the discussion of the doctrine: Hofnagle v. N. Y. C. & H. R. R. R. Co., 55 N. Y. 608;Ring v. City of Cohoes, 77 N. Y. 83, 33 Am. Rep. 574;Lowery v. Manhattan Ry. Co., 99 N. Y. 158, 1 N. E. 608, 52 Am. Rep. 12; and Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679,44 L. R. A. 216. A very good illustration is to be found in Sheridan v. Brooklyn City & N. R. R. Co., 36 N. Y. 39, 93 Am. Dec. 490, where the conductor of the car, in compelling the child to stand upon the platform, and the passenger's carelessness in trying to get off the car when in motion, were efficient and active agencies co-operating to cause the accident. The Barrett Case, 45 N. Y. 628, also furnishes a good illustration, where two cars of street railway companies collided at a crossing of tracks. In every such case the question is, what was the proximate cause of the occurrence, and, if concurrence in negligence is claimed, were the acts or omissions of the parties so closely related and co-operative as to make either a probable and an efficient cause? Could it be said of each cause that without its operation the accident would not have happened?

Was the specific act of negligence charged against the defendant in this case the natural and efficient, and hence a proximate, cause of the accident, or was it the result of the intervention of an independent cause, which defendant was not bound to anticipate, and without which the injury would not have happened? I think that the latter was the case. The negligent conduct of the persons in using the derrick upon the building was an unusual occurrence, and not such as should have been foreseen by the defendant. In Laidlaw v. Sage, 158 N. Y. 73, 52 N. E. 679,44 L. R. A. 216, the definition of that which is the proximate cause of an event was expressed by Judge Martin as ‘that which, in a natural and continual sequence, unbroken by any new cause, produces that event, and without which that event would not have occurred; and the act of one person cannot be said to be the proximate cause of an injury when the act of another person has intervened and directly inflicted it.’ Shearman & Redfield on Negligence, § 26; Wharton on Negligence, § 134.

This is a case where the negligence of the ironworks intervened between the defendant's negligence in making use of an unsound chimney and the receipt by the plaintiff of her injuries, and the former's negligence, as a cause, was remote. The chimney was strong enough to sustain the wire, and the wire was far enough above the street to be out of the way of interference from usual street uses. We may assume that the defendant was negligent for continuing to maintain its wire upon a chimney which inspection would have shown to have become unsound, and still I do not think we could reasonably say that such conduct in the omission on its part of the duty of inspection was the proximate cause of the injury to the plaintiff. Remotely, it may have been a cause; but proximately it was simply the intervention of the derrick boom, carelessly allowed to swing out in the street, which enabled the accident to occur. In the sequence of events, the blow to the wire from the derrick boom was the causa causans, and that was the intervening act of another party. That was an independent force, which came in upon the existing situation and produced the plaintiff's injuries.

I think, on the state of facts disclosed by this record, that there was nothing to warrant recovery against the defendant, and I advise that the judgment be reserved, and that a new trial be ordered, with costs to abide the event.

VANN, J. (dissenting).

The jury found upon sufficient evidence that the plaintiff, while walking on a sidewalk in a public street of the city of New York, was seriously injured by bricks from a falling chimney, and that she would not have been injured but for the negligence of the defendant; yet judgment is about to go against her because another party was guilty of concurring negligence, which, blending with the negligence of the defendant, caused the chimney to fall. The defendant was negligent in attaching one of its telephone wires to a wornout and dangerous chimney standing on the inner line of the sidewalk, and leaving it there without inspection for more than two years, although it knew that the wire passed over a vacant lot in a part of the city well built up, and should have known that a large building had been in process of erection on said lot for three months...