James Gibney, Respondent, v. Rodgers & Hagerty, Incorporated, Appellant, Impleaded with The City of New York and Others, Defendants.
First Department,
March 6, 1914.
Master and servant—negligence — damage to horses and truck caused by giving way of roof to sub-cellar —duty of inspection.
Where, in an action against a city and a contractor to recover for damages to plaintiff’s horses and truck, caused by the giving way of the roof to a sub-cellar, it appeared that the city inspector, who was daily upon the premises, had inspected the same and found nothing to indicate that the earth floor was not solid, and the city engineers and the party who demolished the buildings on the premises where the plaintiff was working at the time of the accident had failed to discover the existence of the sub-cellar, the complaint should be dismissed.
Appeal by the defendant, Rodgers & Hagerty, Incorporated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of April, 1913, upon the verdict of a jury for $1,100, and also from an order entered in said clerk’s office on the 29th day of April, 1913, denying appellant’s motion for a new trial made upon the minutes.
The action was for damages to plaintiff’s person and to his horses and truck. The city of New York had acquired certain premises for the approach to the Manhattan bridge, and the appellant had contracted to fill in the cellars after the buildings had been razed. Plaintiff had hired himself and his trucking outfit to a firm of public truckmen who were carting dirt for the filling work. Prior to the accident a city inspector had inspected the premises and had discovered nothing more than what appeared to be a solid earth floor some ten feet below the street level, with no evidence of any sub-cellar. This inspector was on the premises daily during the work of demolishing. Oappel, who demolished the buildings and removed their material, discovered no sub-cellar; the city engineers, who were in and about the premises in the course of - their work, were equally ignorant of its *287existence, and the defendants knew nothing about it. Plaintiff had been drawing dirt to the premises for some three weeks before the accident. He testified that when he began there appeared to be a cellar about ten feet deep, with an apparently solid bottom. In pursuing the work of filling the earth was dumped from the street side, and as it came up level with the sidewalk planks were laid on the surface and the trucks backed in upon these planks. On the day in question plaintiff backed his truck in until the rear wheels came in contact with a timber Imown as a chock, which served to arrest the trucks at the point where their loads were to be dumped. As he was about dumping his truck the earth beneath the truck and horses subsided, carrying down the plaintiff and his outfit and causing the injuries complained of. It was then for the first time discovered that what had appeared to be the bottom of the cellar was a flooring which served as a roof to a sub-cellar, which roof had given away.
Frank V. Johnson, for the appellant.
Cornelius J. Earley, for the respondent.
Hotchkiss, J.:
It seems to me clear that defendants were not liable. They had the right to rely on the prudence and observation, in the course of the work, of those whose relations thereto preceded theirs, and which relations necessarily called for a reasonable degree of care. (Young v. Mason Stable Co., 193 N. Y. 188.) There was nothing intrinsically dangerous in the apparent conditions, nor anything to suggest the necessity of extraordinary care. They were not called upon to drill for a solid bottom, or to make any further investigation concerning the safety of the situation into which they called plaintiff to pursue his labors, than such as was involved in observing the conditions which apparently existed. As was said by Earl, J., in Burke v. Witherbee (98 N. Y. 562, 568): “Were they bound to know more than every one else ? Ought they to have perceived danger that was not visible to any onó else? *. * *”
*288The judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.