The plaintiff in this action was injured while passing along the sidewalk on Bergen street, Brooklyn. The walk was incumbered with materials from an excavation made in behalf of the defendant by a contractor in its employ ; or 'at least there was evidence from which the jury might properly have drawn these inferences. The defendant had entered into a written agreement with the Brooklyn and Brighton Beach Railroad Company to construct a certain section of elevated railroad connecting the Brighton Beach road with the Kings County Elevated railroad, on which it was necessary to cross Bergen street. In this contract the defendant undertook to become responsible for all damages to persons or property “ occasioned by the omission, neglect or carelessness of itself, its agents hr *583employees, during the performance of the work.” The defendant sublet a portion of the contract to Daniel J. Creem & Co., in which that firm agreed “ to remove all the surplus excavation and other material used in the foundation work from the ground, audio take your place under your contract with the Brighton Beach Co., above mentioned, for furnishing these foundations.” In carrying on this work Creem & Co. made an excavation in Bergen street, depositing the materials on the gutter side of the walk.. The sidewalk, thus obstructed, was not provided with warning lights or guards on the night of the accident; and the plaintiff, being frightened by some dogs which were running toward her, stepped backward upon the materials thus left upon the walk, falling and sustaining the injuries for which she now seeks to recover. The complaint was dismissed at the close of defendant’s evidence upon the theory that the work having been performed by an independent contractor, and that “ the .contract did not contemplate a deposit of the material in the street,” no negligence on the part of the defendant was shown.
. Accepting the rule of law laid down in Water Company v. Ware (83 U. S. [16 Wall.] 566) we are of opinion that the learned trial court erred in dismissing the complaint. In the case cited the court lays down the rule that “ Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the contractor and authorizes him to do. those acts is equally liable.”
While it is possible, of course, that the sub-contractor in the case at bar might have made the excavation, taking all of the dirt removed upon private ground, this was not contemplated by the contract, nor is it in accord with the usual method of doing this particular kind of work. The language of the contract is not that Creem & Go. will remove all the excavation and other materials from the ground adjacent to the excavation in the progress of the work, but is intended to say that on finishing the work they will “ remove all the swrplus excavation and other material *584used in the foundation work from the ground.” This is no more than a promise to complete the work by clearing away all of the incumbrances after the work of plácing the foundations had been completed, and it in no manner relieved the defendant from the obligation which it owed to the public of guarding the excavation as well as the materials which had been thrown out upon the street as an incident to the work. The obstruction which'resulted in the accident was not “ purely collateral to the work,” as in the case of blasting rocks in the process' of excavating, but was a direct and necessary incident of the undertaking; and in the absence of plain and. unmistakable language the sub-contractor cannot be held to have contemplated removing the earth to private grounds, a portion of it to be returned in filling up the excavation after the foundations were laid.
In Woodman v. Metropolitan R. R. Co. (149 Mass. 335), cited with approval by this court in Downey v. Low (22 App. Div. 460), the court held that “.if the performance of a lawful contract necessarily will bring wrongful consequences to pass unless guarded against, and if, as in the present case, the contract cannot be performed ' except under the right of the' employer, who retains the right of access to the premises, the law may require the employer, at his peril, to see that due care is used to prevent harm, whatever the nature of his contract with those whom he employs. * * * Laying the track for thé defendant necessitated the digging up of the highway, and the obstruction of it with -earth and materials. This obstruction would be a nuisance unless properly guarded against. The work was done under a permit issued to the defendant. * * * Ve are of opinion that the defendant, having caused the highway to be obstructed, was bound at its peril to see that a nuisance was not created.”
In the ease at bar tnere is no evidence that either the defendant or the sub-contractor had any permission to make the excavation in the street; but assuming that they were lawfully employed in the work, we are forced to conclude that the defendant cannot be relieved of responsibility in the premises, and that the case should have been submitted to the jury.
The judgment; appealed from should be reversed, with costs.
All concurred, except Goodbich, P. J., who read for affirmance.