Berg v. Parsons , 97 N.Y. Sup. Ct. 267 ( 1895 )

VAN BRUNT, P. J.

This action was brought to recover damages which the plaintiff claimed to have sustained by reason of the ■careless blasting of a contractor employed by the defendant to blast •out a cellar upon his premises, which were adjacent to those of the plaintiff. Upon the trial the plaintiff gave evidence tending to prove that the work was of a dangerous character, and that the contractor was not a suitable and competent person to perform such work. The defendant also gave evidence tending to prove that, being aware of the dangerous character of the work, he had made inquiries, such as a prudent person would make, in regard to the capacity of the contractor, and his carefulness in doing such work. There was evidence also given as to the amount which was paid by the plaintiff in repairing his premises after the injury, which amount was conceded to be a reasonable and fair sum for such repairs;, but it was claimed that such expenditure was not the true rule of damage. Upon the case being submitted to the jury, the jury found a verdict for the amount expended upon the repairs, and from the judgment thereupon entered, and from an order denying a motion for a new trial, this appeal is taken.

The rule seems to be well established that when any contractor or other special agent takes entire control of a work, the employer not interfering, and there being no negligence in the selection of the contractor, the employer is not liable to third parties for injuries to such parties by the contractor’s negligence. It is also well established that the party employing the contractor must employ a competent and fit person for the purpose of performing the work,, or, at least, must exercise reasonable care in ascertaining the character and qualifications of the person so employed. In the case at bar there was evidence given tending to show that the defendant had made some inquiries in regard to the character and qualifications of the person he employed; but they certainly were not of a very exhaustive character, and there was a question left for the jury to determine as to whether they were such as a man of reasonable prudence would make under the circumstances. It was not, by any means, a question for the court to determine, because it would appear that there was some conflict of evidence upon this-point, and different deductions might be drawn from the evidence which was offered. It is not necessary, in the disposition of this appeal, to rehearse the testimony upon this question. It is claimed to be essentially different upon that which appeared upon the previous trial, but we think that inferences of the same character could be drawn therefrom, and that there is no material variation in the-testimony which would authorize the' court in taking that question from the jury.

Various exceptions were raised to the exclusion and admission of evidence, particularly in regard to the testimony as to the habit's, of the contractor. We think that this evidence was competent, for the purpose of showing that he was a person not to be trusted with work of this description, and for the purpose, also, of calling upon the defendant to show that he had used such care and diligence in-ascertaining the character and capacity of his proposed contractor as would absolve him from the charge of negligence in that regard.

There was also an objection taken to the striking out of evidence in regard to the general reputation of this contractor in April, 1892, some months after the happening of the accident in question. It seems to be sufficient to dispose of this exception to say that the witness did not seem to be testifying as to any general reputation whatever. He was only testifying to his belief that the contractor was capable of carrying out the contract, and would use due care in its execution.

In respect to the objection as to the measure of damages, although it is undoubtedly the rule that the difference in value between the premises injured and uninjured is the usual method of ascertaining the amount of damage, yet in the case at bar, there being no pretense that the premises were put in better condition by the repairs than they had been before the accident, and it being conceded that the amount paid was a reasonable sum to pay for putting them in the same condition in which they were before the accident, it does not appear that the defendant has suffered by reason of the application of the rule of damages adopted in this case.

We think that the judgment and order appealed from should be affirmed, with costs. All concur.