Summary
In Slater v. Mersereau (64 N.Y. 138), where water flowed into plaintiff's cellar from an adjoining roof and from a sidewalk which were being constructed separately by independent contractors, the water having first commingled, it was held that although the parties were separately negligent yet the damages were caused by the negligence of both at one and the same time and they were joint tort feasors.
Summary of this case from Lynch v. Elektron Mfg. Co.Opinion
Argued January 25, 1876
Decided February 8, 1876
Nathaniel C. Moak for the appellant. F.H. Churchill for the respondents.
The defendant, as a contractor being in possession and having the control of the premises of Appleton Co., by the authority of the owners, for the purpose of erecting buildings upon and improving the same, in the performance of his contract possessed the same rights as the owner, and was chargeable for a want of due care and for negligence in the exercise of his rights, if by means thereof the property of the plaintiffs was injured.
The referee found that the water which flowed into the cellar of the building and injured the plaintiffs, came from the roof by means of the failure of the defendant to direct Moore Bryant, who were subcontractors, to make the necessary cuttings in the wall for the waste pipe which was intended to connect with the sewer, and without which it could not be connected, so that he failed to provide means to carry off the rain water. That this was negligence on the part of the defendant, and that the water which flowed into the building from Franklin street did so in consequence of the manner in which Moore Bryant had carried on the erection of the vault and sidewalk in front of said building, and that this was negligence on their part.
He also decided that the defendant was not responsible for the neglect of Moore Bryant, but as it was impossible to determine in what proportion the water which came from the waste pipe and that which came from the street contributed to cause the damage, and as all parties in fault were responsible, that the defendant was none the less responsible because Moore Bryant shared his fault, and he reported in favor of the plaintiffs for the damages sustained.
The first question which arises upon the referee's findings is, whether the failure of the defendant to give the proper directions to Moore Bryant was such negligence as made him answerable for the damages which ensued. The contract of Moore Bryant, with the defendant, provided that they should do all the cutting away for repairing after plumbing, etc., as "they should be directed." It necessarily follows from the terms of the contract that the defendant was bound to give such directions as were required to prepare the same, and upon a failure to do so, that he should be held responsible for the damages which ensued by reason of his neglect in this respect. According to this condition, the defendant exercised a supervisory control over the progress of the work, and it was a part of his duty to see that it was conducted properly and with the exercise of ordinary care and skill, so as to prevent injuries to other parties. It is said that by the contract between the defendant and the owners, and between the defendant and the subcontractors, the architect had the sole power to give such directions and did so, and if any damage resulted he is chargeable with the same. It is true that the contract of the defendant with the owner provides for the performance of the work agreeably to the drawings and specifications made by the architect within the time named, in a workmanlike and substantial manner to the satisfaction and under the direction of the architect. But this provision evidently contemplated a general supervision for the purpose of determining whether the construction of the building proceeded in accordance with the contract, so as to enable the architect to give the proper certificates when satisfied. It was not intended to give the architect the absolute and entire control, but for the protection of the owner and as an umpire between the parties, to enable him to determine as to the fitness of the materials, the manner in which the work should be conducted, and to see that the contract was satisfactorily completed as provided.
It is said that even if the duty devolved on the defendant to give directions to cut the recess, that this obligation was substantially complied with. The referee has found otherwise, and there is no such preponderance of evidence as would justify a disregard of his finding in this respect. As the defendant knew that this recess was necessary and had not been made, and as he did not give the proper directions nor provide other temporary means as he was lawfully bound to do, by which the rain could be carried off, the conclusion is irresistible that he was negligent, and liable to answer for the damages caused by means of such negligence.
The liability of the defendant for damages caused by the failure of Moore Bryant to protect the sidewalk, by reason of which the water flowed upon the plaintiffs' premises presents a more difficult question. I concur with the referee's finding, that the responsibility which resulted devolved upon them, and for their neglect in not taking the proper steps to prevent the water from injuring the plaintiffs, the defendant was not liable. He was under no obligation by his contract to give any directions as to this portion of the work, and he had no control or authority over the mode or manner of its performance, and only a right to insist generally that the work be done according to the terms of the contract. He stood in the same relation to Moore Bryant, as the owner of the building occupied towards him. The work was to be performed by the subcontractor, and the defendant was not bound to give directions in regard to its details, except as specially provided for. He was not in the position of one who employs others to help him in prosecuting a piece of work and to perform the same under his control and direction, and who as the superior of the workmen is responsible for their conduct; nor did he stand in the relation of master or principal to the subcontractor, by whose negligent act the injury was in part occasioned. In Overton v. Freeman (11 C.B. [73 Eng. C.L.], 867), it was held, that the contractor was not responsible, where he had entered into a subcontract to pave a street, for injuries caused by the negligence of the latter. It was said that the "case falls within the principle of those authorities which have decided that the subcontractor, and not the person with whom he contracts, is liable civilly as well as criminally for any wrong done by himself or his servants in the execution of the work contracted for." When the subcontractor is negligent while acting independently and the main contractor in no way sanctions the doing of the act complained of, the latter is not responsible. (See also, Burgess v. Gray, 1 C.B. [50 E.C.L.R.], 577; Rapson v. Cubitt, 9 M. W., 710.) I have examined the cases which are cited to sustain the liability of the contractor for the acts of a subcontractor, and none of them uphold the doctrine contended for in a case which bears the essential features of the one now considered.
The defendant not being liable for the negligence of Moore Bryant, as subcontractors, could he be liable for the damages which followed, upon the ground stated by the referee in his report? It is true the defendant and Moore Bryant were not jointly interested in reference to the separate acts which produced the damages. Although they acted independently of each other, they did act at the same time in causing the damages, etc., each contributing towards it, and although the act of each, alone and of itself, might not have caused the entire injury, under the circumstances presented, there is no good reason why each should not be liable for the damages caused by the different acts of all. The water from both sources commingled together and became one body concentrating at the same locality, soaking through the wall into the plaintiffs' premises and injuring the plaintiffs' property; and it cannot be said that the water which the defendant's negligence caused to flow upon the plaintiffs' premises, and which became a portion of all which came there, did not produce the damages complained of. The water with which each of the parties were instrumental in injuring the plaintiffs was one mass and inseparable, and no distinction can be made between the different sources from whence it flowed, so that it can be claimed that each caused a separate and distinct injury for which each one is separately responsible. The case presented is not like that where the animals belonging to several owners do damage together, and it is held that each owner is not separately liable for the acts of all, as there is only a separate trespass or wrong against each. ( Van Steenburgh v. Tobias, 17 Wend., 562; Auchmuty v. Ham, 1 Den., 495; Partenheimer v. Van Order, 20 Barb., 479.) No such division can be made of the separate acts in the case at bar, and it bears some analogy to that of Colgrove v. N.Y. and H. and N.Y. and N.H.R.R. Co. (6 Duer, 382; 20 N.Y., 49), where the injury was caused by concurring negligence in the management of the trains of two railroad companies which came in collision, and the defendants were held jointly liable. The collision was but a single act caused by the separate negligence of different parties, which together produced the result. Here also the contractor and subcontractors were separately negligent, and although such negligence was not concurrent, yet the negligence of both these parties contributed to produce the damages caused at one and the same time. It is no defence for a person against whom negligence which caused damage is proved, to prove that without fault on his part the same damages would have resulted from the act of another ( Webster v. H.R.R.R. Co., 38 N.Y., 260); and as the case stands the referee was justified in holding that the defendant was responsible for the entire damages.
There was no error in the admission or rejection of evidence, and no ground is shown for reversing the judgment.
Judgment affirmed, with costs.
All concur.
Judgment affirmed.