Potter, J.
From the foregoing statement of the evidence it will be seen, that the plaintiff sought to establish a liability upon the part of the defendant for the damages she had sustained, by disregarding the real and ordinary relations between the parties to this transaction and substituting others somewhat inconsistent. Bush had erected and was the owner of the block embracing five houses or tenements and, as such, had made a contract with one Warren to plumb and connect the same with the water main in the street to furnish the' same with water, and Warren had obtained the proper permit of the authorities for that purpose, and which I apprehend is usually granted to plumbers. The plumber had plumbed the houses and connected all of them with the main, except two, and had been paid upon the contract about one-half of the price agreed upon for the entire work. The defendant was a creditor of the owner, and, by consent of the :owner, was
receiving the rent of the tenements, or of some of them, to apply upon the debt due his firm from the owner. The consent to receive and apply the rent was verbal and for no specified period of time. One Donovan dug the trench for the pipe to connect the main pipe with one of the houses. The excavation was not sufficiently covered during the interval of time, Some ten days, between the digging and the filling of it, and during that period the plaintiff, who resided in the tenement of the block next to the one to be connected with the main through the excavation, and who saw it dug and was well aware of its existence and condition, while passing after dark along the sidewalk across which the excavation had been made, fell into it and sustained a very painful and permanent injury.
It is sought in this action, passing by the owner who had a permanent interest to be served and had contracted to pay for the work, the contractor who agreed to do it, to furnish the .material and had nearly completed it, and had the permit, and the digger, who dug and left the excavation insufficiently protected, to fix the liability for the injury and damages to the plaintiff
upon the defendant.
The theory upon which it is sought to fix this liability upon the defendant is that he was the employer and principal of Donovan, who dug the trench, and perhaps also of Warren, the plumber, and that having dug the trench it was his duty to fill it, for the negligence causing the injury was in not replacing rather than removing the filling.
The evidence of the employment of the digger and of the plumber by defendant to put in the service pipe is of a very slight and unsatisfactory character, and is, moreover, quite inconsistent with the contractual relations existing between the owner of the buildings and the plumber. It became very manifest, in the progress of the trial, that this theory might .not certainly fix the liability upon the defendant, and so resort was had to another, which, while it resembles the master-and-.servant theory, is much attenuated, and seems to me to be somewhat extraordinary in this class of cases; and that is this, in
the language of the learned judge’s charge. “ If Doody, for his own interest, in order that he might realize rent, desired that Warren should make the connections, and if that desire was communicated by him to Warren, with the intention to set Warren in motion to make it, that is, make the connection (the mere form of words used is not material), and if that communication of his desire, together with his active agency in finding and sending a man to do the digging, if that, and not the obligation of the contract with Bush, was the sole effective procuring cause which moved Warren to dig the. hole, or to set Donovan to dig it, then Doody was the responsible author of the hole. I will stop here a moment-If this communication of his desire, and his active agency in sending a man, was not the promoting cause, but the contract with Bush; if Warren did it because he had a contract with Bush to do it, and that was what moved him to do it, then Mr. Doody would not be responsible. You understand, I think, but I call your attention specially to that. Then the counsel proceeds with his proposition: ‘And if in that case Doody knew, or had good reason to believe, that the hole had been dug, it was his duty to see that it was filled up at farthest within twenty-four hours after such notice, or it became a public nuisance, of which he was the responsible author or maintainer, and liable for the consequences to the plaintiff.’ That is a proposition of law which I will submit to you, and you are to apply it to the facts, whether this was caused in the way contemplated by that question or some other.”
It is not necessary, in the result I have reached, to analyze this theory of the charge or to apply it to the evidence in this case, or to decide that it was erroneous in law; but I am quite sure it will impress every experienced trial judge who is conversant with the proneness of human nature, whether inside or outside of the jury box, to sympathize with the sufferings of another, and to bestow benefits upon them, if not out of their own, then out of another’s pocket, and if out of another’s, then out of that one who is most able, though perhaps the
least liable, to pay it. But I am satisfied that there were in the working out of the plaintiff’s theories several fatal errors committed both in the charge and the rulings upon the.evidence, and to which exceptions were duly taken.
The court, upon the request of plaintiff, charged that
“
Plaintiff’s negligence was not in the case. If she had been negligent it would be no defense.” This was error. The complaint charged the defendant with negligence through his servant in making and maintaining this hole, and that plaintiff, without fault on her part, fell into it. Moreover, the action does not belong to that class of actions where the obstruction in a street is without authority and wholly wrongful, such as the case of
(Clifford
v.
Dam,
81 N. Y. 52.) and the cases there cited.
In this case the excavation was permitted by the public authorities, and the party making or maintaining the obstruction only becomes liable for his negligence in the use of the privilege. The pleadings show that this action is based upon and involves the care and negligence of both parties to the action. Besides, evidence was given by the plaintiff herself that she saw the man at work digging the trench, and saw the trench daily or nearly so, and had safely passed over the trench only an hour or two before, but that her attention was diverted from it on the occasion of the accident by a card in the window of the house near the excavation.
The same error, or kind of error, occurred when the court charged the jury “ that if it was mere inattention or negligence, that does not preclude her recovery.”
The charge, in many respects, if not positively erroneous, was entirely misleading to the jury in a case of this character. “ The jury are not bound to conclude from the fact that Warren, on February 9, 1885, took out a permit to make this connection, that he intended to make it under his contract with Bush, if they can find in the evidence any other motive for taking out the permit.”
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Potter, J.
From the foregoing statement of the evidence it will be seen, that the plaintiff sought to establish a liability upon the part of the defendant for the damages she had sustained, by disregarding the real and ordinary relations between the parties to this transaction and substituting others somewhat inconsistent. Bush had erected and was the owner of the block embracing five houses or tenements and, as such, had made a contract with one Warren to plumb and connect the same with the water main in the street to furnish the' same with water, and Warren had obtained the proper permit of the authorities for that purpose, and which I apprehend is usually granted to plumbers. The plumber had plumbed the houses and connected all of them with the main, except two, and had been paid upon the contract about one-half of the price agreed upon for the entire work. The defendant was a creditor of the owner, and, by consent of the :owner, was
receiving the rent of the tenements, or of some of them, to apply upon the debt due his firm from the owner. The consent to receive and apply the rent was verbal and for no specified period of time. One Donovan dug the trench for the pipe to connect the main pipe with one of the houses. The excavation was not sufficiently covered during the interval of time, Some ten days, between the digging and the filling of it, and during that period the plaintiff, who resided in the tenement of the block next to the one to be connected with the main through the excavation, and who saw it dug and was well aware of its existence and condition, while passing after dark along the sidewalk across which the excavation had been made, fell into it and sustained a very painful and permanent injury.
It is sought in this action, passing by the owner who had a permanent interest to be served and had contracted to pay for the work, the contractor who agreed to do it, to furnish the .material and had nearly completed it, and had the permit, and the digger, who dug and left the excavation insufficiently protected, to fix the liability for the injury and damages to the plaintiff
upon the defendant.
The theory upon which it is sought to fix this liability upon the defendant is that he was the employer and principal of Donovan, who dug the trench, and perhaps also of Warren, the plumber, and that having dug the trench it was his duty to fill it, for the negligence causing the injury was in not replacing rather than removing the filling.
The evidence of the employment of the digger and of the plumber by defendant to put in the service pipe is of a very slight and unsatisfactory character, and is, moreover, quite inconsistent with the contractual relations existing between the owner of the buildings and the plumber. It became very manifest, in the progress of the trial, that this theory might .not certainly fix the liability upon the defendant, and so resort was had to another, which, while it resembles the master-and-.servant theory, is much attenuated, and seems to me to be somewhat extraordinary in this class of cases; and that is this, in
the language of the learned judge’s charge. “ If Doody, for his own interest, in order that he might realize rent, desired that Warren should make the connections, and if that desire was communicated by him to Warren, with the intention to set Warren in motion to make it, that is, make the connection (the mere form of words used is not material), and if that communication of his desire, together with his active agency in finding and sending a man to do the digging, if that, and not the obligation of the contract with Bush, was the sole effective procuring cause which moved Warren to dig the. hole, or to set Donovan to dig it, then Doody was the responsible author of the hole. I will stop here a moment-If this communication of his desire, and his active agency in sending a man, was not the promoting cause, but the contract with Bush; if Warren did it because he had a contract with Bush to do it, and that was what moved him to do it, then Mr. Doody would not be responsible. You understand, I think, but I call your attention specially to that. Then the counsel proceeds with his proposition: ‘And if in that case Doody knew, or had good reason to believe, that the hole had been dug, it was his duty to see that it was filled up at farthest within twenty-four hours after such notice, or it became a public nuisance, of which he was the responsible author or maintainer, and liable for the consequences to the plaintiff.’ That is a proposition of law which I will submit to you, and you are to apply it to the facts, whether this was caused in the way contemplated by that question or some other.”
It is not necessary, in the result I have reached, to analyze this theory of the charge or to apply it to the evidence in this case, or to decide that it was erroneous in law; but I am quite sure it will impress every experienced trial judge who is conversant with the proneness of human nature, whether inside or outside of the jury box, to sympathize with the sufferings of another, and to bestow benefits upon them, if not out of their own, then out of another’s pocket, and if out of another’s, then out of that one who is most able, though perhaps the
least liable, to pay it. But I am satisfied that there were in the working out of the plaintiff’s theories several fatal errors committed both in the charge and the rulings upon the.evidence, and to which exceptions were duly taken.
The court, upon the request of plaintiff, charged that
“
Plaintiff’s negligence was not in the case. If she had been negligent it would be no defense.” This was error. The complaint charged the defendant with negligence through his servant in making and maintaining this hole, and that plaintiff, without fault on her part, fell into it. Moreover, the action does not belong to that class of actions where the obstruction in a street is without authority and wholly wrongful, such as the case of
(Clifford
v.
Dam,
81 N. Y. 52.) and the cases there cited.
In this case the excavation was permitted by the public authorities, and the party making or maintaining the obstruction only becomes liable for his negligence in the use of the privilege. The pleadings show that this action is based upon and involves the care and negligence of both parties to the action. Besides, evidence was given by the plaintiff herself that she saw the man at work digging the trench, and saw the trench daily or nearly so, and had safely passed over the trench only an hour or two before, but that her attention was diverted from it on the occasion of the accident by a card in the window of the house near the excavation.
The same error, or kind of error, occurred when the court charged the jury “ that if it was mere inattention or negligence, that does not preclude her recovery.”
The charge, in many respects, if not positively erroneous, was entirely misleading to the jury in a case of this character. “ The jury are not bound to conclude from the fact that Warren, on February 9, 1885, took out a permit to make this connection, that he intended to make it under his contract with Bush, if they can find in the evidence any other motive for taking out the permit.”
What other motive could, from the evidence in the case, have been operating upon the mind of Warren to take out the, permit other than the contract for the plumbing with Bush,
the owner, unless plumbers in the city of Brooklyn are in the habit of taking out and paying some $35 for a permit for houses generally that have not been connected with the water service, and trusting to the chance of getting a contract later on for the plumbing ? The tendency, if not the object of the remark, was to remove the force of the fact that. Warren was bound by the contract with Bush, for, at the date of the permit, there is no evidence that defendant ever saw Warren.
The charge was also erroneous or misleading,
“
whether the tenant in this tenement was the tenant of Doody or of Bush. The material question is, whether Doody had an interest to serve in getting the connection made, about which the parties agree, since he was entitled to the rent of the house.”
The court was balancing the interest of Bush, the owner, and who had concededly made a contract with Warren to plumb the house, against that of defendant, who had no legal right to the rent that he could enforce, and to lead the jury to think that defendant might have made such a contract.
It was error to refuse defendant’s request to charge “ that it is not enough to render the defendant liable for the injury in question to show that he desired or wished the work to be done, or that he was interested in having it done, or that Warren, the plumber, was moved to make the connection by the suggestion of the defendant, but it must appear that the person doing the work was the servant of the defendant.”
It was error to refuse the defendant’s request “ to render the defendant liable for the act of Warren in opening the street, it must appear that in doing so he was the agent or servant of the defendant, was in his employ, and subject to his direction and control,” and the charge made instead of that requested was, if not erroneous, misleading to the jury.
The modified charge suggests that the defendant might have moved Warren, as the contractor with Bush, to make the excavation, that is, to do what he had agreed with Bush to do. Now, I apprehend that Bush himself would not be liable for the improper manner in which Warren, his independent contractor, might do the work. Much less would the defendant
be liable for the manner in which the independent contractor of Bush should perform his contract with Bush, either to Bush or anyone else.
The case, as presented by the charge, is liable to lead the jury to think that Donovan was the defendant’s servant in digging the hole, but if not, then Warren was the defendant’s servant, although Warren had a contract with Bush to do the entire job, including the digging of the hole, and which contract was, at the time, in force, so far as the evidence discloses.
The defendants sought, in order to meet these theories of the plaintiff, to show by Donovan that he did not employ or direct Donovan, in regard to digging the trench, to ask Donovan who did employ him to dig the hole, and by his own testimony, that he did not employ or direct Donovan in that regard or say anything to anybody about opening the street; and by Warren that when he set Donovan to work digging, he was acting under the Bush contract, or whether he (Warren) had any contract with any other than Bush, to connect the water main with the house. All these questions were objected to by plaintiff and overruled. Some of them, at least, were, it seems to me, improperly overruled within the principle decided in
Knapp
v.
Smith
(27 N. Y. 277-281). In that case it was held (Judge Denio writing the opinion of the court) that overruling this question,
“
For whom did your husband do what business he did after you took the deed,” etc., was error. In
Sweet
v.
Tuttle
(14 N. Y. 465-472) it was held (Judge Oomstook writing the opinion of the court) that this question “ on the part and behalf and for whom did the defendant do what he did that fall in relation to the wreck of the Phoenix
%
” was proper. Clearly, within these decisions, it was competent for Warren to testify that the digging was done under the Bush contract and that Warren had no contract with any other than Bush when it was done.
I think the judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except Haight, J., not sitting.
Judgment reversed.