Althorf v. . Wolfe , 22 N.Y. 355 ( 1860 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The plaintiffs' intestate was lawfully passing through a public street in the city of New York, when he was struck on the head by a quantity of snow and ice thrown from the roof of the defendant's house, and killed. It was negligence, in the highest degree, to throw snow and ice from the roof of a building into a thoroughfare of a crowded city, without using some precaution against accidents. Instead of depositing the snow incumbering the roof in the yard attached to the premises of the defendant, it was cast into the street, without any warning of danger being given to passers-by. The defendant, in his answer, admits that, on the morning of the day the accident happened (having been apprised that the roof was leaking in consequence of a large quantity of snow having accumulated thereon), he directed his servant Fagan to remove the snow from the roof. No specific instructions were given in respect to the manner of doing the work. It was a general direction to clear the roof, as the defendant was leaving his house to attend to his business in the lower part of the city. The defendant was not present, nor did he superintend the work when it was done, but entrusted it solely to his servant, without a suggestion as to how it should be performed, or where the snow and ice should be deposited. It cannot be questioned that, under these circumstances, the defendant is liable for any injury resulting from the negligence of Fagan in performing the work entrusted to him; and it must be conceded that, if the identical body of snow and ice that descended upon the head of the deceased, and caused his death, was actually thrown by Fagan, though another person may have been aiding him in the work of clearing the roof, the defendant would be responsible. But it seems that one Patrick Cashan had volunteered to assist Fagan in removing the snow. For that purpose he had been admitted into the defendant's house, by the defendant's servant. He was aiding Fagan, undoubtedly without the knowledge or express authority of the defendant himself; but it is not to be assumed that he went upon the roof without the assent of the person or persons having charge or control of the defendant's house at the time. The evidence showed that Fagan and Cashan together were engaged in shoveling the snow from the roof when the accident occurred; but, whether the identical body of snow and ice that caused the death of Warner was thrown by Fagan or Cashan, was left in uncertainty. The fatal injury was evidently produced by ice being thrown on the head of the deceased. Fagan testified that he neither saw nor shoveled any ice; while Cashan testified that he saw a little ice on the roof near the trimming, but he knew that he threw it into the middle of the street. The injury occurred on the sidewalk in front of the defendant's house. The request, however, was, to submit to the jury to find whether the injury to Warner resulted from the act of Cashan or Fagan; and if from the act of Cashan, and they further found that he was employed by Fagan without the authority of the defendant, to instruct them that the defendant was not liable. In other words, as there was no pretence of any express authority from the defendant to employ Cashan to assist in the work, to instruct the jury that, if they should find that Cashan, and not Fagan, threw the identical shovelful of snow and ice that struck Warner, occasioning the fatal result, there could be no recovery. Whether it was an error of law to refuse so to charge, was the only question argued at bar, or of any difficulty in the case.

I am of the opinion that, under the conceded facts of the case, it was not error to refuse to charge as requested, and that it was immaterial, as affecting the defendant's liability, whether Fagan or Cashan actually threw that parcel of the snow and ice being removed from the roof which occasioned the fatal injury. In either view, it was, substantially, the act of Fagan, who had been charged by the defendant with the duty of clearing the roof. The defendant had given him general directions to throw the snow from the roof of his house, enjoining no caution and suggesting no mode of doing it, to prevent injury; nor placing the servant under any restriction against procuring aid in the work. I see not, therefore, why he was not entitled to procure aid, and invested with the power of exercising his own judgment as to the mode of doing the work. He selected Cashan to assist him, and introduced him into the defendant's house for that purpose, without objection from those having the charge and control of it. Provided with the defendant's tools, they engage together in the work, and in its progress one of them throws the deadly missile. Is this not substantially the act of Fagan? Fagan was present, aiding, directing and controlling Cashan, as much as he directed and controlled the shovel in his own hands. Nobody will doubt that, if he had thrown it with his own hands, the defendant would have been responsible. It can scarcely be less a negligent act of Fagan that it was thrown by a person whom he had requested to assist him in the employment in which they were mutually engaged, and who had been admitted upon the roof of the defendant's house without objection. In Booth v. Mister (7 Carr. Payne, 66), the defendant was held liable for injuries to the plaintiff's cabriolet, resulting from the negligent manner in which the defendant's cart was driven, although it appeared that the defendant's servant was not driving at the time, but had entrusted the reins to a stranger who was riding with the servant, and not in the service of the defendant. The defendant's liability in that case was placed on the ground that the negligence causing the injury was substantially the act of the defendant's servant, who was in the cart, and the master had put it in the power of the servant to do the injury. It is very clear, in the present case, that the defendant put it in the power of Fagan to do the injury, and that, if he had not directed the latter to remove the snow from the roof, it could not have occurred. Nor could there have been any pretext for attributing the fatal result to the negligent act of Cashan, if the defendant's servant and household had not only voluntarily admitted him into the house, but solicited his assistance and services. Had Cashan gone upon the roof of the defendant's house without the knowledge or authority of the defendant or his family, and injured a passer-by, by throwing snow and ice upon him, nobody would pretend that the defendant would be liable; but the case assumes an entirely different aspect when it is conceded that he was there at the solicitation of Fagan, assisting him in a work that the defendant had directed to be done, and with the knowledge and assent of the defendant's family. Under these circumstances, an estimable citizen, as the case shows, lawfully passing along a public street, is instantly killed by snow and ice cast from the defendant's roof by the party assisting in the work; yet it is contended that the defendant is not liable, because such party was not in his employment, and was using his premises without his express knowledge or authority. It is not doubted that, if the snow and ice had been thrown from Fagan's shovel, the defendant would have been liable; but, forsooth, because Fagan is being aided by Cashan in the same negligent act, and the injury is the result of snow and ice thrown from the shovel of Cashan, the defendant is to escape liability. I am not able to take this view of the case.

The negligence for which the defendant is responsible, if at all, consisted in throwing the snow and ice which incumbered the roof of his house into the public street without exercising reasonable and proper precaution to avoid injuring persons lawfully using the street. Instead of himself superintending the work of clearing the roof, he directed his servant to do it, giving no special instructions as to the mode of doing it, nor restricting the latter in any way from procuring aid. After giving the general direction, the defendant left the premises to attend to his business in the lower part of the city, and did not return until the negligent act that caused the death had been performed. The house, however, was not left tenantless. The defendant's family occupied it. His wife was there; for it appears that, before entering on the employment of removing the snow, she dispatched Fagan upon an errand. Then it was that Fagan met Cashan, and the latter, being temporarily out of employment, consented to aid him in cleaning the roof Cashan was not a trespasser in the defendant's house, but was admitted to it by the defendant's servant, and with the knowledge and assent of the defendant's family, and those having the control of it. It is urged, with much earnestness, that Cashan, who was an improper person, was on the premises, engaged in the defendant's service, without any authority of knowledge of the defendant. He was there, doubtless, without the personal knowledge or direct authority of the defendant; for he was absent in another part of the city, attending to his business. But I do not understand the case to show that Cashan was working with Fagan on the roof of the defendant's house, unknown to the defendant's wife or family, or to those having the custody and control of the tenement in the defendant's absence, or without their impliedly, at least, assenting to it. If they knew and assented to his being there, it was equivalent to knowledge and assent on the part of the defendant. If not brought on, he was allowed to be on the premises, by the owner; and the latter is charged with knowledge that he was engaged in the particular service, to which he interposed no objection or dissent. I suppose that, if the wife of the defendant, in the absence of the latter, had ordered Cashan to assist Fagan in the work, the defendant would have been responsible. This case shows that he was not there in hostility to the wishes and intention of the defendant's household, but in accordance with them; and, under the circumstances, it should hardly be allowed the defendant to say, "It is true I ordered the work to be done, placing no restrictions on my servant against engaging assistance; my family and household knew that Cashan was aiding him, and tacitly assented to it; but, as I did not know or expressly authorize him to enter my house and engage in my service, I ought not to be liable." In this view of it, the case certainly presents the strange anomaly that two persons may be mutually engaged in the same work on the defendant's house, viz., shoveling snow and ice from the roof, and if that thrown by one of them produces an injury, the defendant is liable; if by the other, he is not, though the latter is allowed to be upon the premises, and indeed actually brought on by one of the defendant's household. In the one case, the innocent and injured party may have redress for an injury resulting from a misuse of the premises; in the other, as against the owner, he is remediless. This cannot be so. It is not absolutely necessary that the technical relation of master and servant, as between the defendant and Cashan, should exist, or that Cashan should be able to recover of the defendant for his services, to make the defendant liable to a third person. If the injury was the result, substantially, of the negligent act of Fagan, in the course of his employment of clearing the roof, or if Cashan was allowed to be on the premises by the owner, shoveling snow from the roof in so negligent a way that a person in the street is injured, or if the defendant had not taken due and proper care to prevent a negligent or improper person from being about his premises, and in consequence of this an injury happened to a third person, he is liable. The owner or possessor of fixed property is responsible that it be so used that other persons receive no injury; and if he does not take due care to prevent a negligent person from being about his premises, and, in consequence of this, an injury happens, he cannot cast off responsibility. Cashan was brought on the premises by one of the defendant's household, and was allowed to be on the roof of the house, engaged in the work of shoveling snow, by those having the custody of the tenement for the time. In strictness, he cannot be said to have been there against the will of the owner, and wholly without his knowledge or authority.

The request, in substance, of the defendant's counsel was, that the judge should charge the jury that, if they found that the relation of master and servant did not exist between the defendant and Cashan, and that Cashan actually threw the snow and ice that struck Warner and caused his death, the defendant was not responsible. Under the state of facts developed by the case, I think it was not error to refuse so to charge.

It is not contended that there are any other available exceptions in the case; and I am in favor of affirming the judgment of the Common Pleas.