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properly constructed or attached to the roof originally. If these allegations bé true, it was a nuisance, and a recovery might be had upon that theory, notwithstanding the fact that the plaintiff characterizes the failure of the defendant to properly construct and attach the structure as negligence, and the subsequent maintenance thereof as negligence.
Second. We come now to the question as to whether the plaintiff could, in any view of the evidence, sustain his action upon the theory of nuisance, and whether it was tried and submitted to the jury upon that theory. The plaintiff, on his affirmative case, presented no evidence as to the actual condition of the skylight from which he received the injury, or as to the manner in which it was constructed or attached to the roof. He rested upon the doctrine “res ipsa loquitur.” Where that rule applies, the fact of the accident and the attendant circumstances, without further proof of the cause, warrant the inference of negligence; but it is doubtful whether they alone would warrant the inference of such a negligent condition as would constitute a public nuisance, although in Vincett v. Cook, 4 Hun, 318, the court appears to have been of opinion that they do. The decision of the question, however, was not necessarily involved in that case; nor is it, I think, in this, for here, at least, the owner was not in possession. The learned counsel for the plaintiff upon the trial insisted from the outset that he was proceeding upon the theory of nuisance. After the plaintiff rested, the defendant offered evidence tending to show that the plans had been prepared by competent architects, that the contract had been let to competent builders, that the work had been performed in accordance with the plans and under the supervision of a competent superintendent, and that the building was constructed under the lease while possession was in the lessee. The plaintiff, then, in rebuttal, presented evidence showing that the skylight, which consisted of a heavy copper or iron framework and glass weighing between 1,200 and 1,500 pounds, covered an elevator shaft which projected 8 feet above the roof, the dimensions of which were 12 by 8 feet, and rested on brick walls inclosing the elevator shaft, and tending to show that the skylight was not directly attached to the roof, but only to the brick walls by iron rods or bars an inch in width and one-quarter of an inch in thickness, extending down about 18 inches or 2 feet on the inside of the walls, and about an inch of the lower ends being bent outward and projecting into the brick walls, and that this was not a proper construction, but that the skylight should have begn bolted to the roof.
"The evidence tends to show a very unusual condition of the weather and a most severe storm at the time of the accident; that the temperature ranged from 70 to 72 degrees between 2 and 4 o'clock that afternoon, which was the highest for that day of the year in the history of the Weather Bureau, which dated from 1872, and that between 4 and 6 o'clock there was a rapid fall in temperature to 62 degrees at 5 o'clock; that there was a high wind, at the average rate of 35 miles an hour from 2 to 3 o'clock, of 34 miles an hour from 3 to 4 o'clock, of 47 miles from 4 to 5 o'clock, and a gale of 50 miles an hour from 5 to 6 o'clock; that during the five minutes ending at 4:15 p. m. the wind attained a velocity of 73 miles an hour; that it grew very dark for that time of and 136 New York State Reporter day; that it was raining at the time of the accident, and the rain commenced at the Broadway Weather Bureau Station at 4:09 p. m. The records of the Weather Bureau did not show the velocity of the wind at precisely 4 o'clock, but the fair inference is that the accident occurred at about the time when the wind attained its highest velocity, and just as or after the storm reached that point. The highest wind ever recorded in the Weather Bureau for New York and vicinity was 83 or 84 miles an hour. The court submitted it to the jury to determine whether the storm was of such unusual violence that the defendant, in constructing the building, was not obliged to foresee and guard against the danger incident thereto. I am of opinion that this was à question of fact for the jury, although the case is not strong on the question of defective construction of the building such as would make it a nuisance and the wind attained or nearly attained hurricane velocity. It is the duty of those constructing buildings in close proximity to the public street to exercise reasonable care to construct them with such safety and security that they will withstand any storm or wind that reasonably prudent men, familiar with weather conditions in the locality, would anticipate might occur. Vincett v. Cook, + Hun, 318; Haack v. Brooklyn Labor Lyceum Ass'n, 93 App. Div. 492, 87 N. Y. Supp. 814. But, of course, they are not insurers against their building blowing or falling into the street from a storm of hurricane velocity or from an earthquake. The enforcement of these rules of law is essential alike to the safety of those using the public streets and to the protection of the rights of owners of property.X
The court, in submitting the case to the jury, did not expressly submit it upon the theory of nuisance, and frequently used the word “negligence” in speaking of the claims of the plaintiff and of the duty of the defendant. But the court in this regard merely followed the complaint, and very clearly instructed the jury that, unless the skylight was improperly constructed and insecurely attached to the building originally, the defendant would not be liable. The case was, therefore, in effect submitted to the jury upon the theory of nuisance.
The learned counsel for the appellant urges that the defendant is not even liable for nuisance, because the building was constructed, not by him, but by his tenant, who was in possession. As has been seen, the rule is well settled that a landlord who leases his premises with a nuisance thereon remains liable therefor. There is another rule, equally well settled, that every one who creates a nuisance, or participates in the creation or maintenance thereof, is liable for it, even though the work was done by an independent contractor. Deming v. Terminal Ry. Co., 169 N. Y. 1, 61 N. E. 983, 88 Am. St. Rep. 521; Hawke v. Brown, 28 App. Div. 37, 50 N. Y. Supp. 1032; Duerr v. Consolidated Gas Co., 86 App. Div. 14, 83 N. Y. Supp. 714; Coon v. Froment, 25 App. Div. 251, 49 N. Y. Supp. 305; King v. Railroad Co., 66 N. Y. 185, 23 Am. Rep. 37; Weber v. Buffalo Ry. Co., 20 App. Div. 293, 47 N. Y. Supp. 7; Creed v. Hartmann, supra; Wood on Nuisances, $ 113. If the skylight, when constructed, was a nuisance, owing to the fact that it was not safely attached to the building, I am of opinion that the owner would be liable. It is not a case of following plans which competent experts advised were safe, and, while the owner did not possess special knowledge sufficient to judge for himself, in which case probably he would not be liable (Fox v. Ireland, 46 App. Div. 541, 61 N. Y. Supp. 1061; Burke v. Ireland, 166 N. Y. 305, 59 N. E. 914; Duerr v. Consolidated Gas Co., supra; Uggla v. Brokaw, 77 App. Div. 310, 79 N. Y. Supp. 244), neither the plans nor the specifications contain a definite requirement with respect to the manner in which the skylight should be attached. The only requirement was that it should be safely attached. Neither side presents evidence clearly showing how it was secured to the building or roof, or who determined the matter. It cannot be decided upon this record whether it was so attached that a person of ordinary intelligence, without special knowledge or training, should have known whether it was unsafe, or whether an owner would have been obliged to rely on that point upon experts specially skilled in such matters, and whether he did in such manner and to such extent that he would be relieved from the charge of personal negligence in knowingly participating in the creation of a nuisance, assuming that to be a defense.
It is unnecessary to discuss at length the various provisions of the leases. They were both made on the same day. Under the first, the tenant was to remove the old buildings, prepare plans and specifications for the construction of the new building, which were to be approved by the owner, and to advertise for proposals for the construction thereof and make a contract in his own name; the entire expense, however, to be paid by the owner, and the tenant to pay, in addition to an agreed annual ground rental, 5 per cent. per annum on the entire cost of construction. The second lease was of the building when completed for a period of 21 years, with a privilege of two renewals for a like period; the rental being as contemplated in the first lease. The tenant took possession under the first lease and continued in possession, without surrendering possession at the expiration of the first lease and taking possession under the second. The agreement under which the building was erected expressly provided that it was to be and became the property of the defendant. An owner may, of course, rent his premises, and consent that the tenant may erect buildings thereon which shall become the property of the landlord, and, if the latter reserves no control or supervision over the work, he will not be responsible either for the negligent acts of the tenant or his contractor or the employés of the latter, either during the construction or for the safety of the plan, or for damages subsequently occasioned by the collapse of the building while he is thus out of possession. There, however, the owner reserved, to a certain extent, control with respect to the plan and the construction of the building thereunder. If a nuisance was created thereby on his own land, he participated therein. He not only authorized the erection of the building, but he approved the plan under which it was erected, supervised its erection, approved the completed structure, and paid the bills. He cannot, therefore, escape liability, if, when erected, it became a public nuisance.
Third. I am of opinion, however, that the judgment must be reversed for an error in the charge. It is manifest that, upon the theory of a nuisance, the burden was upon the plaintiff to show that this skylight was not originally securely attached to the building, and that the inference and 136 New York State Reporter authorized by the rule “res ipsa loquitur" would not establish, even prima facie, that the building was a nuisance when constructed. The learned trial judge on this point apparently lost sight of the fact that the plaintiff was claiming a right to recovery upon the theory of nuisance, and charged the rule of law applicable in an action for negligence. The jury were instructed that the fact that part of the skylight blew into the street raised the presump'ion that it was not properly secured, and that it was the duty of the defendant to meet this presumption by proving affirmatively that it was securely fastened. The learned counsel for the defendant duly excepted to this part of the charge, and I am of opinion that the exception was well taken. Since, as has been seen, the action cannot be maintained against the owner upon the theory of negligence, upon which theory alone the charge of the court would have been proper, it is manifest that the jury may have been misled upon this very vital point. There was a conflict in the evidence as to the manner in which the skylight was attached. The evidence on the part of the defendant, if believed by the jury, would have warranted them in finding that it was securely fastened, and that it gave way only owing to the extraordinary violence of a gust of wind, which the exercise of reasonable care would not have required the defendant, in the construction of the building, to have anticipated or guarded against. The burden of proof on this point, therefore, became very important, and the jury should have been instructed that it rested with the plaintiff.
It follows, therefore, that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide event.
PATTERSON, P. J., and HOUGHTON, J., concur.
SCOTT, J. I concur in the reversal of the judgment, although not precisely for the reasons stated by Mr. Justice LAUGHLIN. In the first place, I consider that the complaint states a cause of action for negligence, and nothing else. It was upon that construction of the complaint that the sufficiency of the defenses were considered upon the former appeal to this court (77 App. Div. 310,79 N. Y. Supp. 211), and the cause was tried and submitted to the jury as an action for negligence.
But, whether considered as an action for negligence or for a nuisance, the plaintiff did not show any facts entitling him to a judgment against the defendant. It was clearly shown that defendant neither built nor occupied the building. He owned the land upon which it was erected, and he leased the land to one Sherry, before the erection of the building was commenced, under a separate agreement that Sherry should erect the building and that defendant should pay the cost thereof. The only negligence charged, or attempted to be proven, is that one of the skylights upon the roof of the building was not fastened to the walls upon which it rested as securely as it might, and should have been fastened, and the claim is that this constituted negligence for which defendant is liable. In effect, the attempt to charge the defendant on the theory of nuisance is based on the same charge of negligence. A nuisance erected upon private property must be something inherently dangerous, and constructed and maintained in violation of the safety of others, or, as stated by Judge Earl:
"An unreasonable, unwarrantable, or unlawful use of one's own premises, so as to produce material annoyance, inconvenience, discomfort, or hurt to his neighbor.” Campbell V. Seaman, 63 N. Y. 568, 20 Am. Rep. 567.
A skylight upon the roof of a building is not per se unreasonable, unlawful, or unwarrantable, and it cannot, therefore, be considered a nuisance, even if likely to become dangerous, unless there be proof of negligence either in its construction or maintenance. Losee v. Buchanan, 51 N. Y. 476; 10 Am. Rep. 623; Cosulich v. Standard Oil Co., 122 N. Y. 118, 25 NE. 259, 19 Am. St. Rep. 475. It follows that, in order to sustain a recovery against the defendant upon any theory, it is necessary to convict him of negligence, and, as he has never been in possesison of the building, that negligence must be found with respect to the original construction of the skylight. It is sought to be found in the insecurity of the fastenings, and the question of defendant's liability, therefore, resolves itself into the question whether or not he is to be held to have been negligent in not discovering and preventing the use of an insecure means of fastening the skylight to the roof.
Under the contract between defendant and his tenant, Sherry, I much doubt if the former can be considered as the person who erected the building. He neither selected nor employed the architects and contractors engaged in its erection. The plans were subject to his approval; but it is not claimed that they were improper or defective, and the method of securing the skylight was a minor detail of construction not shown on the plans. The defendant is not to be held liable merely because he employed an architect, for his own protection, to see that the structure was erected according to the plans (Weber v. Buffalo R. Co., 20 App. Div. 292, 47 N. Y. Supp. 7; Duerr v. Con. Gas Co., 86 App. Div. 14, 83 N. Y. Supp. 714), nor because he paid the cost of the building. In Miller v. N. Y., L. & W. R. R. Co., 125 N. Y. 118, 26 N. E. 35, the lessee of the land built an embankment so negligently that the sand and débris were washed down upon plaintiff's land, to his injury. The cost of erecting the embankment was paid for by the lessor. In an action against the latter it was said, as might well be said of the present case:
“The lessor cannot be made liable for these damages, because it was bound under the lease to issue to the lessee its bonds for the cost of any work chargeable to construction The work was nevertheless the work of the lessee. It did the work in its own way, and the lessor had no control thereof. In doing the work the lessor was in no way the superior of the lessee in such a sense that it was bound to respond for the acts of the lessee."
Even if defendant were to be regarded as the person who erected the building, still no case was made imputing negligence to him. The method of fastening the skylight was, as has been said, a minor detail of construction, of any defect in which it is not claimed that defendant had knowledge or notice, and of the general competency and skill of the architects and contractors no question is raised. For their default in the method of doing the work the defendant is not liable. Burke v. Ireland, 166 N. Y. 305, 59 N. E. 914.