This is an action for damages arising out of personal injuries due to the alleged fault of the subcontractor and contractor.
The questions presented are the correctness of the charge of the court, whether the defendant subcontractor fairly apprised the court that the charge was improper, and whether the general contractor, as distinguished from the subcontractor, may avail himself of the exception by the subcontractor and participate in the new trial.
The facts sufficiently set forth to show how the questions arise are as follows:
The defendant Shapiro, a general contractor for the construction of a theatre, sublet to an independent contractor, Miller, Inc., excavation work which necessitated the use of compressed air passing through a pipe running across the sidewalk to the excavation from a compressor machine in the roadway. This crossing required a permit. A permit for the purpose of "crossing [the] sidewalk" had been obtained but whether the wording of this permit comprised a crossing by way of pipes containing compressed air was a question properly submitted to the jury. The obstruction across the sidewalk consisted of a two-inch pipe flanked by boards two inches high and twelve inches wide each with a beveled edge on the approach side. One of the boards became tilted against the pipe. Plaintiff walking along the sidewalk stepped on the tilted board which slipped under her weight and thereby caused her to fall and sustain injuries. The case was submitted to the jury upon the theories of negligence and of nuisance.
The learned court correctly charged as to negligence but there was error in the charge as to nuisance. Nuisance *Page 465 in this case could arise in two ways: laying the pipe and boards across the sidewalk without a permit therefor, and laying the pipe and boards across the sidewalk with a permit but in a negligent manner, e.g., where the board is tilted against the pipe instead of lying flat on the sidewalk.
If no license has been issued, then an obstruction in the public way is an absolute nuisance (McFarlane v. City ofNiagara Falls, 247 N.Y. 340, 343; Clifford v. Dam, 81 N.Y. 52; Congreve v. Smith, 18 N.Y. 79), whereas if a permit has been issued but the privilege to obstruct the public way is exercised in an improper manner, then the resulting nuisance is of a kind which arises out of negligence.
As to the kind of misconduct on the part of a plaintiff which bars recovery in an action based on negligence and one based on nuisance, a jury should be charged as follows: When the charge is want of due care or negligence, obviously any want of due care on the part of the plaintiff or negligence contributing to the happening, prevents recovery. When the complaint is nuisance, consideration must be given to the kind of nuisance, whether nuisance based on mere want of due care and thus arising out of negligence, or nuisance based on an act which is unlawful even if performed with due care. When the gravamen of the complaint is nuisance which arises out of negligence, then a jury should be charged that contributory negligence on the part of the plaintiff bars recovery. (McFarlane v. City of Niagara Falls, supra.) But where the gravamen of the complaint is an absolute nuisance or a nuisance per se, that is a nuisance based on an act which is unlawful even if performed with due care, then a jury should be charged that something more than a mere want of ordinary care on the part of the plaintiff is required to prevent recovery. (Muller v. McKesson, 73 N.Y. 195; Lynch v. McNally,73 N.Y. 347.) The act of the plaintiff to prevent recovery must amount to being informed of the dangers in his path and then being willing to encounter them. The principle is comprised within the old maxim, volenti non fit injuria, or "one will not be heard to complain of results one has invited." (Zurich G.A. L. Ins. Co. v. Childs Co., *Page 466 253 N.Y. 324, 327; McFarlane v. City of Niagara Falls, supra;Smith v. Baker Sons, L.R. [1891] A.C. 325, 360; Harper on the Law of Torts, §§ 153, 193; Bohlen, Studies in the Law of Torts, pp. 514-521.)
A person in the public way is usually entitled to expect that it will be free from obstruction. Thus, in the leading case ofClifford v. Dam (supra) where the plaintiff fell into an uncovered coal hole, it was held that the plaintiff need not have been alert for dangerous conditions. The jury should be charged that a person in walking along the sidewalk need not be expecting obstructions to safe passage; but if the plaintiff sees the obstruction and with foresight of the consequences unreasonably attempts to exercise the legal right of passage regardless of the risk, then there may be no recovery. The unreasonableness under all the circumstances would be measured by the extent of the risk foreseen and the value of the right to be secured.
In the light of the foregoing, we may consider the charge of the trial judge in the case at bar, which was as follows: "From the point of view of the claim that it was a nuisance, as I said before, any obstruction like this which is allowed to `become loose or otherwise so that it did tilt up and become a subject of danger to a pedestrian, constitutes a nuisance, and then the question of contributory negligence would not enter like it does on the theory of negligence only."
The portion of the charge quoted refers to the kind of nuisance which arises out of doing a lawful act but doing it negligently or without due care, and makes no distinction between plaintiff's right to recover for such an act and where the defendant is liable for an absolute nuisance or a nuisance based on the doing of an act unlawful in itself as if the defendant subcontractor laid the pipe across the sidewalk in disregard of the requirement that a permit with safeguarding regulations must be obtained therefor.
The general contractor, appellant Shapiro, urges that he is not liable for the improper manner in which his subcontractor laid the pipe and boards, because that is a collateral act of negligence on the part of an independent contractor. The test as to whether an act is collateral *Page 467 has been stated as follows: "Probably the rule as to collateral negligence means nothing more than that the negligence required to impose liability upon an employer of an independent contractor must be negligence committed in the doing of the act itself which he is employed to do, and that negligence in other operations which, though connected with that work, are not themselves of a kind to create vicarious liability, is not sufficient. Thus if a defendant employs a contractor to make an excavation in a street, the defendant will be responsible for the negligence of the contractor in failing to light or guard the excavation, but will not be responsible for his negligence in carting materials to or from the scene of the operations." (Salmond on the Law of Torts [8th ed.], p. 124.)
The general contractor here makes the same argument that was advanced in Wright v. Tudor City Twelfth Unit, Inc. (276 N.Y. 303). In that case, "There was evidence to sustain a finding by the jury that the defendants were aware that the work, which they had delegated to another, was being done in a way from which danger to the public was reasonably forseeable" (at p. 308). Here, too, the general contractor knew that the subcontractor had laid the pipe and boards on the sidewalk. (Rosenberg v.Schwartz, 260 N.Y. 162, 166.) With the limited exception above mentioned, one who authorizes work dangerous to those on a public way cannot delegate liability for the negligent performance of that work. (Wright v. Tudor City Twelfth Unit, Inc., supra;Rohlfs v. Weil, 271 N.Y. 444; Salmond, op. cit., supra, § 75.)
We deem that the appellant Miller, Inc., sufficiently excepted to that portion of the charge regarding contributory negligence as a defense to nuisance arising out of negligence. Although appellant Shapiro did not except thereto, he may take advantage thereof. His liability in any event is derived from Miller, Inc. The function of an exception is to give the court and the opposing party the opportunity to correct an error in the conduct of a trial. No greater opportunity would have been afforded, had the exception *Page 468 been chorused by both Shapiro and Miller, Inc., rather than made by the latter alone. The general contractor, therefore, should be allowed to participate in the new trial.
The judgments should be reversed and a new trial granted, with costs to abide the event.