Cook v. The President, &c., of The N. Y. Floating Dry Dock Co.

JOSEPH J. COOK v. THE PRESIDENT, &C., OF THE NEW YORK FLOATING DRY DOCK COMPANY.(a)

The owner of a machine, made by him to be hired out to others for a particular purpose, is under an obligation to make such machine sufficiently strong to answer the purpose intended. If an injury occurs through a defect in it, the owner is liable.

Wherever the law imposes a duty on a man, a neglect of that duty renders him liable to any one injured by such neglect.

The authorities upon this point collated and examined.

And he is equally liable, whether the injury is occasioned by a neglect or disregard of some special obligation or duty due to the injured party, or by a neglect or disregard of a public duty or obligation.

L employed S. and L. to repair a ship, and hired the defendants' dry dock for the purpose of making the repairs. S. and L. erected a scaffolding upon standards attached to the dock, and belonging to the defendants, and which, by the rules of the defendants, they were required to use for that purpose. Owing to the insufficiency of the standards the scaffolding gave way, and C., who was enployed upon it by S. and L., in making repairs, fell upon the dock, and was injured. Held, that the defendants were liable to him in an' action for damages therefor, although there was no privity of contract between him and them.

APPEAL by plaintiff from an order granting a new trial. This was an action brought to recover damages for injuries to the person of the plaintiff, occasioned by the falling of a staging. George Law, one of the owners of the steamer Ohio, employed the firm of Simonson & Lugar to repair that steamer, and hired the dock of the defendants for that purpose. The business of the defendants is simply to raise vessels from the water, for the purpose of being repaired, and lower them again when the repairs are completed. They make no repairs themselves.

The Ohio was raised in January, 1851. Simonson & Lugar employed one Edward Hart to put up the necessary staging to be used in repairing the steamer, and it was put up by him un

(a) See this case, 18 N. Y. Reports, p. 229.

Cook v. The President, &c., of the N. Y. Floating Dry Dock Co.

der Simonson & Lugar's supervision. As a part of the dock of the company, and for the purpose of erecting scaffoldings, there are placed along the sides upright pieces of timber, called standards. These are fastened to the dock by staples. It is against the rules of the company to drive spikes into the dock; those using it being required to erect their stagings upon these standards. The scaffolding was erected thereon accordingly. On the 14th of January, 1851, while the plaintiff was upon this staging, employed in the repairs of the ship, the staples were by the weight of the staging drawn out, the standards gave way, the staging fell, and the plaintiff was thrown down upon the dock, and seriously injured. The evidence showed that the staples which fastened the standards to the dock were not driven through and clenched upon the other side, as in the opinion of several witnesses should have been done. The evidence, however, as to whether the accident arose from the improper erection of the staging, or from the insecurity of the standards, was conflicting.

The cause was tried before Judge Daly and a jury. He denied a motion made by the defendants for a nonsuit, and left it to the jury to say whether the accident resulted from the improper construction of the standards, or from negligence in the erection of the staging, instructing them that in the former case they were to render a verdict for the plaintiff, otherwise for the defendant. The jury found a verdict for the plaintiff for $6,000.

The defendants then moved on a case for a new trial, which was granted at special term, by Judge Daly, who delivered the following opinion:

DALY, J.-It is very doubtful whether there was sufficient evidence in this case to support the finding of the jury. I think it appears very plainly from the testimony, that the fall of the staging was owing to the insecure manner in which it was put up by the person employed by Simonson & Lugar to erect it; that it was constructed in such a way as to subject the standard affixed to the plaintiff's dock to an amount of lateral pressure

Cook v. The President, &c., of The N. Y. Floating Dry Dock Co.

which it could rot resist, and was never intended to bear. But conceding that there was sufficient evidence to sustain the finding of the jury, that the staging was properly erected, and that the accident was owing entirely to the insecure manner in which the standard was bolted or fastened to the dock, still the plaintiff can maintain no action against the defendants. Law, the owner of the vessel, made a contract with the defendants for the use of their Floating Dry Dock in raising and supporting his steamship while she underwent certain repairs, and he made a distinct and separate contract with Simonson & Lugar, the shipbuilders, to do the repairs. They employed one Hart, a rigger and shipwright, to erect the necessary staging to enable them to caulk and copper the vessel, and they also employed the plaintiff, ho, with other workmen in their employ, was on the staging when it fell, and caused the injury for which the action is brought. In Winterbottom v. Wright (10 Mees. & Welsb. 109), it was held that a coachman, in the employ of a person who had contracted to drive a mail coach along a line of road, could not maintain an action for injuries he had sustained through the breaking down of the coach from latent defects in its construction, against a person who, under a contract with the postmaster general, had agreed to provide the coach for the route. The case under consideration is in no respect stronger than the one here stated, and the principle which governed in the decision of the one is equally applicable to the other. If such actions were allowed, the greatest complexity and difficulty would arise in attempting to adjust the respective rights and liabilities of parties. The breaking of a chain cable of a ship, as was suggested in Winterbottom v. Wright, in consequence of which the vessel runs aground, would, were such a right of action conceded, entitle every person, injured in person and property by the accident, to bring an action, not only against the manufacturers of the cable, but against the vendors of the iron. The only safe and practical rule is to confine the right of action to those who stand in the relation of contracting parties, or to cases where the injury is caused by the disre gard or neglect, of some obligation or duty which the party causing

Cook v. The President, &c., of The N. Y. Floating Dry Dock Co.

it owes to the party injured. Thus, where one leaves an excava tion in a public street, at night, without proper light or safeguards, through which neglect a passer-by falls in and breaks his leg, an action lies against the party prosecuting the work at the suit of the party injured, because he assumes the obligation to conduct it in such a careful manner as to prevent injury to those who have, in common with himself, a right to the free use of the street; and so an action is maintainable against one who undertakes a public duty, by any one who suffers injury through his neglect in the discharge of that duty, there being an implied obligation to the public to discharge it. But the manufac turer or vendor of an article does not become responsible to every one, into whose hands it may subsequently pass, for pecuniary loss or injury arising from latent defects in the article, or its unfitness for the use to which it is applied. He may be responsible to him for whom he manufactured it, or to whom ho rented it for a particular purpose, should it cause bodily harm or injury to the party renting it or his employees, upon being applied to the use for which it is intended, but in such a case the liability of the manufacturer or vendor is founded upon the presumption of fraud arising from his delivering the article with knowledge that it was liable to produce injury from its unfitness for the purposes for which it was purchased. Such was the case of Levy v. Langridge (2 Mecs. & Welsb. 519; 4 ibid. 337), in which the defendant sold a gun to the father of the plaintiff, with knowledge that it was for plaintiff's use, representing it to be of a particular manufacture, and to be a good, safe and secure gun, when in fact he knew it to be otherwise. The gun, upon being used by the plaintiff, burst, severely wounding and maiming him, and the action was held to be maintainable because the plaintiff, for whose use, as well as that of his father, the gun was bought, was a party contracting, and the representations made to the father was a fraud upon both. As a general rule, such actions must be limited to those between whom there is a contract express or implied, or where a public duty or obligation arises, as in cases analogous to those stated. In the present case, there

Cook v. The President, &c., of The N. Y. Floating Iry Dock Co.

was no privity of contract between Cook and the defendants. Their contract was with Simonson & Lugar. He was in the employ of the latter. Simonson & Lugar erected the staging, or employed the person who erected it, and if they or their employee made use of a defective apparatus attached to the dock, for the use of which Law had contracted with the defendants, the plaintiff must look to Simonson & Lugar. He can maintain no action against the defendants.

From an order granting a new trial the plaintiff appealed to the general term.

T. E. Tomlinson and Washington Irving, for the appellant. I. If the accident occurred through the carelessness of the defendants, it is no answer to allege the carelessness of others.

(a) The court can see judicially, without evidence, that a staple driven into a piece of timber without being clinched, which could only be retained in its place by the cohesiveness of the wood, and to which a rope was to be attached to support in any way a staging, is a grossly careless and improvident structure; the drying up of the wood, the mere oscillation of the staging without any weight, would pull it out.

(b) It is abundantly in evidence, that the defendants knew (or, which is the same thing, the law presumed them to know) that the staples were unsafe, dangerous, and negligently fastened. This brings this case within the class where a knowledge of the imperfection of an article and an appropriation of it renders the maker liable.

The defendants knew that these staples were unfit, and not only caused them to be used, but prevented the use of others.

II. It is a fundamental principle of adjudication, where a loss must fall on one or other of two innocent persons, that he through whose negligence or want of caution the injury has been effected should bear the loss. Here it is proved, found by the jury, and conceded, that without the negligence or want of caution of the defendants, this injury could not have been effected. 1 Taunt.