The jury found upon sufficient evidence that the plaintiff, while walking on a sidewalk in a public street of the city of New York, was seriously injured by bricks from a falling chimney and that she would not have been injured but for the negligence of the defendant, yet judgment is about to go against her because another party was guilty of concurring negligence, which, blending with the negligence of the defendant, caused the chimney to fall. The defendant was negligent in attaching one of its telephone wires to a worn-out and dangerous chimney standing on the inner line of the sidewalk and leaving it there without inspection for more than two years, although it knew that the wire passed over a vacant lot in a part of the city well built up, and should have known that a large building had been in process of erection on said lot for three months prior to the accident, whereby the security of the wire was put in danger. The negligence of the third party, a contracting company engaged in erecting said building, consisted in such careless management of its operations as to cause the boom of a derrick to swing against the wire and topple the defective chimney down upon the plaintiff. As the wrong could not have been done without the concurring negligence of the two parties named, the negligence of each was an efficient and proximate cause which rendered both liable, jointly and severally, for the natural result.
Concurring negligence is not an intervening cause within the meaning of the law, provided the result was a reasonable probability. If the defendant, acting with the average prudence of mankind, should have foreseen that interference with its wire was likely to occur through the building operations, of which it should have known, its negligence is not excused by the negligence of those engaged in erecting the building, because it was bound to the exercise of due care to prevent *Page 124 injury through the union of its own action with that of another. The law does not permit a public street in a crowded city to be turned from a place of safety into a place of danger by the joint action of two persons, without holding both liable for such consequences as a reasonable man should have anticipated and provided against. The defendant could not create the dangerous situation and leave it, making no effort to guard or watch it, and when harm came therefrom to the plaintiff, as a result reasonably to be apprehended, plead in defense the intervening negligence of a third party, although the accident could not have happened but for its own negligence. The negligent act of a stranger did not excuse the negligence of the defendant, provided some such act, not necessarily the one which did occur, but any similar act that might have occurred, was liable to happen in the judgment of a man of ordinary prudence. The evidence made this a question for the jury, and their verdict, after affirmance by the Appellate Division, is conclusive upon us.
These views are supported by the following cases which I regard as establishing the law of the state upon the subject: Congreve v. Morgan (18 N.Y. 84); Colegrove v. N.Y. N.H.R.R. Co. (20 N.Y. 492); Sheridan v. Brooklyn City N.R.R. Co. (36 N.Y. 39); Webster v. Hudson River R.R. Co. (38 N.Y. 260);Barrett v. Third Avenue R.R. Co. (45 N.Y. 628); Ring v.City of Cohoes (77 N.Y. 83); Kunz v. City of Troy (104 N.Y. 344) ; Cohen v. Mayor, etc., of N.Y. (113 N.Y. 513);Phillips v. N.Y.C. H.R.R.R. Co. (127 N.Y. 657); Murphy v.Leggett (164 N.Y. 121, 126); Rider v. Syracuse R.T. Ry. Co. (171 N.Y. 139, 155).
In the Sheridan case a child was compelled by the conductor of a crowded railway car to leave his seat and stand upon the platform and while there he was thrown off and killed through the carelessness of another passenger in trying to get off while the car was in motion. The defendant was held liable, notwithstanding the fact that the carelessness of the passenger intervened between the carelessness of the *Page 125 defendant and the injury to the plaintiff's intestate. The court said: "It does not alter this liability, that the wrong of a third party concurred with their own in producing the injury. * * * If they had not removed the deceased from his seat, and compelled him to stand upon the platform, he would have been unaffected by this illegal act of the young man. It was his violence, concurring with the defendant's illegal conduct in overcrowding their car and in placing the deceased upon the platform, that produced the disastrous result. It is no justification for the defendant that another party, a stranger, was also in the wrong."
In the Barrett case the plaintiff was injured by a collision between the cars of two horse railroad companies, the tracks of which crossed each other at an acute angle. The court in sustaining a verdict for the plaintiff against the defendant upon whose car she was riding as a passenger, said: "If the acts of the defendant's servants contributed to the injury, the defendant must respond in damages to the plaintiff, although the negligent acts of the persons in charge of the other car also contributed to the same result, and the comparative degree in the culpability of the two will not affect the liability of either. If both were negligent in a manner and to a degree contributing to the result, they are liable jointly and severally."
In the Ring case it was said that "When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or to any of the causes; but it cannot be attributed to a cause, unless without its operation the accident would not have happened."
In the Kunz case the court said that "A defendant whose negligence was a constituent element of the transaction and without which the injury would not have happened is legally responsible * * *."
In the Cohen case we said: "In a case like this, where no obstruction would have existed but for the wrongful conduct of the defendant, it must be held responsible for the damage *Page 126 which it has caused by reason of the obstruction, even though it might have happened if the licensee had been careful in regard to the manner in which he exercised the assumed right granted him by the license. The defendant, under these circumstances, must take the risk of such care, and not an innocent passer-by."
In the Phillips case it was held that where, in an action to recover damages for injuries alleged to have been caused by the defendant's negligence, it appeared that there were two proximate causes of the injury, one the negligence of the defendant and the other an intervening occurrence happening without fault on the part of the plaintiff, she was entitled to recover.
The same rule prevails elsewhere. (Lane v. Atlantic Works,111 Mass. 136; Koplan v. Boston Gas Light Co., 177 Mass. 15;Koelsch v. Philadelphia Co., 152 Penn. St. 355; Pastene v.Adams, 49 Cal. 87; Kennedy v. Grace, 91 Fed. Rep. 798;Felton v. Hasbeson, 104 id. 737; Waller v. M., K. T. Ry.Co, 59 Mo. App. 410; Lake Shore M.S. Ry. Co. v. McIntosh, 38 N.E. Rep. 476; Burrows v. March Gas C. Co., L.R. [5 Exch.] 67; 7 id. 96.)
The evidence authorized the jury to find and, hence, they are presumed to have found that the negligence of the defendant concurring with that of the contracting company, caused the accident; that the plaintiff would not have been injured without the negligence of the defendant and that the result was such as should have been foreseen as a reasonable probability. These facts, as I think, render the defendant liable and the judgment against it should, therefore, be affirmed.
PARKER, Ch. J., HAIGHT and MARTIN, JJ., concur with GRAY, J.; CULLEN and WERNER, JJ., concur with VANN, J.
Judgment reversed, etc. *Page 127