(dissenting):
I do not agree with the result reached by my associates, and for the reasons stated below.
Counsel for the appellant contends that the accident was occasioned by the absence of lights and the fact that, while at first the material was in trim and compact piles near the gutter, these piles, being left for several days, had become disarranged and extended further on to the sidewalk, and that such facts constituted negligence, for which the defendant was liable.- He does not attempt to controvert the general doctrine that where a person has employed an independent contractor to do lawful work such employer is not liable for the negligence of the contractor, but contends that “ where one contracts for an unlawful excavation to be made in the highway he is responsible for the natural and probable consequences of the act performed in the usual and ordinary method applicable to such work.” In my view of the law applicable to this action, it is not necessary to discuss the proposition of the learned counsel. It is true that there was no evidence of any permit from the public authorities to make the excavation, but I cannot assume that it was the intention of the contract that Creem & Co. should do the work in an unlawful manner and without permission of the authorities. If the plaintiff’s injuries had resulted from falling into the excavation a different case would have arisen, and it might have been incumbent upon the defendant to prove that there was a permit from the public authorities to open the highway, but the excavation was not the proximate cause of the accident which resulted from the material left on the street. It was not necessary to the work of excavation and laying foundations that material should be left upon the street. -It might have been deposited on private property elsewhere.
The trial court held that “the. contract did not contemplate a deposit of the material in the street,” and this, to my mind, was a correct interpretation of the contract. Without multiplying citations, I think the true rule in cases of this character is stated by the United States Supreme Court in Water Company v. Ware (83 U. S. [16 Wall.] 566), cited in the prevailing opinion, where it was said-(pp. 576, 511):
*586“ 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 to the injured party. (Robbins v. Chicago, 4 Wallace, 679.) Exactly the same view was advanced by this court when that ■case was brought, here by the first writ of error,.in which the court •said that if the nuisance necessarily occurs in the ordinary mode of •doing the work the occupant or owner is liable, but if it is from the negligence, of the contractor or his servants, then he should alone be .responsible. (Chicago v. Robbins, 2 Black, 428.) Common justice .requires the enforcement of that rule, as if the contractor does the thing which he is employed to do the employer is as responsible :for the thing as if he had done it himself, but if the act which is the •subject of complaint is purely collateral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the work to he.done. (Hole v. Railway Co 6 Hurlstone & Norman, 497.)”
It seems to me that the method of doing the work, the piling of the excavated earth .on the sidewalk, the shoring up of it, the keeping of it in its place and the guarding of it by lights or otherwise, all these things were “ purely collateral to the matter contracted to. be done.”
The same doctrine was enunciated by the Court of Appeals in Herrington v. Village of Lansingburgh (110 N. Y. 145). The village had entered into a contract for the construction of a sewer in one of its streets, the contract providing that the contractor should be responsible for all damages arising from blasting done in the course of the work. The plaintiff’s horses were frightened by the noise of a blast, and in trying to control them he was injured. The •court held that if there was culpable carelessness, it was that of the • o •contractors; that- (pp. 148, 149): “ They had entire control of the work and the manner of its performance. They could choose their own time for firing the blasts and select their own agents and instru*587■mentalities. They could make the charges of powder large or small, and they could, in some degree, smother'the blasts so as to prevent falling rocks and much of the noise of the explosion; or they could carelessly omit all-precautions, and for the consequences •of their negligence they alone would be responsible. If it was a prudent thing to notify persons in.the vicinity of the blast before.it was fired, then the contractors should have given the notice; but the duty to give it did not devolve upon the village. And for these •conclusions the cases of Pack v. Mayor, etc. (8 N. Y. 222); Kelly v. Mayor, etc. (11. id. 432), and McCafferty v. Spuyten Duyvil, etc., Railroad Company (61 id. 178), are ample authority.” It might be added that the same, doctrine was announced in the oft-cited case, Blake v. Ferris (5 N. Y. 48).
I am unable to see any distinction between the doctrine announced In these cases and that which governs the case at bar, and think the judgment should be affirmed.
Judgment reversed and new trial granted, costs to abide the •event. »