Boylhart v. DiMarco & Reimann, Inc. , 270 N.Y. 217 ( 1936 )

The respondent, DiMarco Reimann, Inc., contracted with the city of New York to construct part of a new subway. Under the contract, portions of the construction work might be sublet to subcontractors approved by the city. The steel construction was so sublet to the Rosaire Contracting Company. The contractor was authorized by the city to occupy such portions of the street surface as might be necessary for the storage of materials. Certain steel beams to be used in the structure were stored on a neighboring street, insecurely piled by the subcontractor. The infant plaintiff with two companions were playing "follow the leader" on and around the pile. While standing on the pile the leader "wiggled" the beams, causing several of them to roll down the pile and injure the plaintiff. On the trial the plaintiff had a verdict against both the contractor and the subcontractor. Thereafter, the trial judge set aside the verdict and dismissed the complaint as against the contractor. The Appellate Division unanimously affirmed the judgment against the subcontractor and, by a divided court, affirmed the dismissal as to the contractor.

The only question which need be considered is whether the contractor, under the facts here, is subject to liability for the negligence of the subcontractor in piling the beams in the street. The applicable principle of law is well settled. "One employing another is not liable for his collateral negligence unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it." (Lord BLACKBURN in Dalton v. Angus Co., 6 App. Cas. 740, 829.) (Compare American Law Institute, Restatement of the Law of Torts, ch. 15, topic 2, and particularly § 417.) The distinction between the two things is that in the one case the danger has its origin in an act of negligence collateral to the work, which could not be foreseen and guarded against beforehand, while in the other the danger is inherent in the work contracted to be done and might reasonably be expected. (Hyman v. Barrett, 224 N.Y. 436,439.) If the contractor leaves a pickaxe in the road (Penny v. Wimbledon Urban District Council, [1899] 2 Q.B. 72, 76), or negligently drops a stone from a bridge under construction over a highway (Reedie v. L. N.W. Ry.Co., 4 Ex. 244), or negligently fires a blast (Herrington v.Village of Lansingburgh, 110 N.Y. 145), or while making repairs to a house, casually dislodges a board (Hyman v. Barrett,supra), his employer is not liable. If, however, he makes an excavation (Storrs v. City of Utica, 17 N.Y. 104), or raises an embankment (Deming v. Terminal Railway of Buffalo,169 N.Y. 1) in a highway and fails to guard it or give warning, or leaves an insecure pile of iron rails in a street (Ramsey v.National Contracting Co., 49 App. Div. 11), his employer is liable. When one undertakes work in a public highway which, unless carefully done, will create conditions which are dangerous to members of the public using the highway, in the usual and ordinary manner, he is under a duty to use requisite care. That duty cannot be delegated.

The work which the respondent had contracted with the city to do rendered necessary some use of the street surface for storage of materials. Permission for such use had been given to it. That carried with it a duty, among other things, to use reasonable care in piling the material on the street. Thirty pieces of steel, ranging from twelve and one-half to sixteen feet long and weighing from 450 to 900 pounds each, piled four feet high in the street, created a condition inherently dangerous to the public unless the work of piling was carefully done. Among the members of the public to whom the duty of care was owing were children playing on the street, since their proclivities as matter of common knowledge might draw them to such objects in the course of play. (Earl v. Crouch, 57 Hun, 586; 61 Hun, 624; affd.,131 N.Y. 613; Kunz v. City of Troy, 104 N.Y. 344; Long v. Cityof Dunkirk, 260 N.Y. 599; cf. Restatement of the Law of Torts, § 302, subd. m.)

Upon the evidence the case was clearly for the jury, which found the subcontractor lacking in the duty of care to the plaintiff, a member of the public. The same duty, under the facts, rested primarily and unavoidably upon the respondent. Its liability, vicarious though it may be, necessarily follows.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the verdict reinstated, with costs in all courts.

CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur.

Judgments reversed, etc.