#### Louise M. Herman, as Administratrix, etc., of Fred W. Herman, Deceased, Respondent, *v.*City of Buffalo, Appellant, Impleaded with B. I. Crooker Company and Others, Defendants.

Fourth Department,

July 8, 1913.

Municipal corporation — death of employee of sub-contractor by collapse of municipal building — negligence — nuisance — evidence — maintenance and construction of defective foundation—admissibility of measurements of wall after collapse of building — superintendent of construction as agent of city.

In an action to recover for the death of plaintiff’s intestate, an employee Of a sub-contractor engaged in placing a roof on a municipal building being constructed for the defendant city, it appeared that after the foundation for the building had been completed the contract for the superstructure was let, and that while the plaintiff’s intestate was working upon the roof of the building by the implied invitation of the city, it collapsed and he was killed.

Evidence examined, and held, that the foundation was not constructed in accordance with the orignal plans, that it was insufficient and insecure at the time the work was turned over to the contractor for the superstructure, and that the insecurity and danger increased, resulting in the collapse of the building;

That the creating and maintaining of such foundation constituted a nuisance, rendering the city liable.

Measurements made after the collapse of the building showing that the wall had moved several inches after the work on the superstructure was begun were properly admitted in evidence.

It was not error for the court to instruct the jury that the superintendent of construction was the agent of the city.

Foote, J., dissented.

Appeal by the defendant, City of Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered *820in the office of the clerk of the county of Erie on the 8th day of October, 1912, upon the verdict of a jury for $14,000, and also from an order entered in said clerk’s office on the 22d day of August, 1912, denying the defendant City of Buffalo’s motion for a new trial made upon the minutes.

*George E. Pierce*and *Ciarlo H. Hammond,*for the appellant.

*Charles L. Feldman,*for the respondent.

Kruse, P. J.:

The plaintiff’s intestate was at work upon the roof of the new pumping station engine house, which was being constructed for the city of Buffalo; the building collapsed and he was killed. The accident occurred June 30, 1911, and the building was nearly complete when it fell.

The action is for his death, it being contended that the building was obviously insecure and dangerous and a nuisance. Several contractors and sub-contractors who did work upon the building and the architect who planned it were joined with the city as parties defendant. At the close of the plaintiff’s case, motions for nonsuit were made by the various defendants and denied, with exceptions to the rulings. No further evidence was given on behalf of the defendants and the case was submitted to the jury with the result that a verdict was rendered against the city, but as to the other defendants verdicts of no cause of action were rendered. The city appealed from the judgment entered upon the verdict against it and from an order denying its motion for a new trial.

It is contended that the building fell because the east foundation wall of the building was not sufficiently strong nor secure to withstand the lateral pressure against it; that the wall was crowded inward, carrying with it the superstructure sufficiently to weaken the trusses which supported the roof; that the trusses were put out of alignment and bowed or buckled and the lower chords put out of tension, thus weakening the trusses so that they were unable to carry the load which was put upon them, and the roof fell and the building collapsed.

The land upon which the building was located was a part of the park system of the c-ity. The park commissioners consented *821to the erection of the pumping station thereon, as they were permitted to do (Laws of 1905, chap. Ill), and named Robert A. Wallace as architect and superintendent of construction for the building. He was so recognized by the commissioner of public works and acted in that capacity. Wallace was made a party defendant, but, as has been stated, a verdict was rendered in his favor and the plaintiff does not now claim that the verdict of the jury against the city is founded upon the incompetency of the architect or the insufficiency of the plans made by him.

It is, however, contended by the plaintiff that the Wallace plans were not followed; that Samuel J. Fields, the assistant engineer in the water department, was placed in charge of the foundation work and the work done under the direction of the department of public works, and in such a way that the building was insecure in the respect to which I have called attention.

The work of constructing the foundation was let to the Buffalo Dredging Company in August, 1907. The work was. commenced in the spring of 1908 and finished in the fall of that year. The site extends to the shore line of Lake Erie. The ground, or a part of it, was originally low and under water. The site was dredged and excavated to within two feet of bed rock where a layer of hardpan was encountered. Trenches were dug for the foundation wall through the hardpan, so that the walls rested upon the rock, but were not embedded iii the rock or keyed. The building was rectangular in form, 364 feet by 100 feet. The east foundation wall, the one which became insecure, was 364 feet long, 38 feet high, 5 feet wide at the base and 3 feet at the top, the slope of the wall being on the inside. The original plans contemplated concrete foundations for two portico entrances on the east side, one near the south end and the other near the north end. These portico walls were to connect with the east wall and extend down to the rock, but they were omitted and piles were driven in their stead, to which I' will again advert.

After the foundation work was completed and had been accepted and paid for by the city, the work of filling in the site outside of and around the walls was commenced by the city in the winter of 1908 and 1909, under the immediate super*822vision of the assistant engineer in the water department. The first filling consisted of ashes, cinders and the like material which had been gathered by the city street cleaning contractor. The work was continued until the filling east of and next the east foundation wall was up about twenty feet. Then the pit or excavation inside the walls was filled with broken stone and earth up to the same height. Thereafter a second filling of about fourteen or fifteen feet, consisting of earth, was placed on top of the first filling, next to the east foundation wall and extending to within a foot of the top of the wall. The filling was finished late in 1909 and the work was left in that condition until the spring of 1910 when it was noticed that the east wall was being deflected inward and westward, evidently due to the lateral pressure of the outside fill. Cracks about a half an inch wide running through the wall, about six feet from either end were discovered. Measurements were made in February, 1910, showing a maximum deflection of six inches, one hundred and fifty feet south of the north end, the wall bending toward the west commencing at the crack at either end of the wall. Within a month or so several other measurements were taken which disclosed that there was an increasing deflection of the wall. Thereupon the matter was taken under consideration by the assistant engineer and the commissioner of public works and his deputy, and a plan adopted for holding the wall in place by means of buttresses or braces placed on the inside of the wall. Twenty or more of these buttresses, consisting of concrete, each weighing about eight tons, were placed against and attached to the wall on the inside, resting in and upon the broken stone filling in the pit and secured by a mat or floor of concrete. But it is claimed that the buttresses should have extended down through the broken stone and been embedded in the rock; 'that after a time the broken stone filling settled so that they were simply hanging to the wall. Whether that is so or not, the proof tends to show that the wall was not held in place.

With the foundation in that condition the work was turned over to the B. I. Crooker Company, who had taken the contract for the superstructure. Although the contract was let in July, 1909, their work was not commenced until the spring of *8231910. A short time after the work of erecting the superstructure had commenced, fifteen piles were driven to the bed rock about three feet outside of the east wall near the north end and a like number near the south end, for the portico entrance foundations. The work was done under a separate contract made by the city with a contracting firm and in accordance with the plans prepared by the assistant engineer. This work, like all of the foundation work, was done under the direction of the assistant engineer.

The iron frame of the building consisted of twenty-three double posts or columns on the east wall and as many on the west wall, fourteen feet eight inches apart, one longer than the other, the longer ones carrying the roof trusses and the shorter ones a track for operating a traveling crane. The ends of the building were brick walls and the east and west walls were of brick and terra cotta, forming a so-called curtain wall. From the peak or ridge of the building, about 200 feet long was erected a lantern or skylight of iron and glass, attached to the upper chords of the trusses extending about ten feet either side of the peak, the purpose of which was to allow the steam and smoke to escape and to admit light and air. Extending lengthwise of the building purlins were riveted to the trusses. The roof was of reinforced concrete, on top of which tile was being placed at the time the building collapsed, on the 30th day of June, 1911.

It is also claimed that changes were made in the superstructure which weakened the building, especially in the trusses, and they were overloaded. But the most that can be claimed for those things is that they contributed to the accident, if the conditions respecting the east wall were as the plaintiff claims and as the jury evidently found. The verdict rests essentially upon the finding that the foundation was insufficient and insecure at the time the work was turned over to the contractors for the superstructure, and that the insecurity and danger increased as the work progressed, finally resulting in the collapse of the building. Upon that question the city attorney asked the court to charge the jury that although they found that there was a deflection of two inches in the east wall after the building of the buttresses, if the city, through its officers, in the *824exercise of ordinary care did not know of such movement, but that its officers believed that the building of the buttresses would prevent further movement, the city is not responsible or liable for creating or maintaining a nuisance, and that the jury must render a verdict of no cause of action in favor of the city; counsel adding after a colloquy between himself and the court, “if they use reasonable care;” to which the court replied: “Reasonable care. I so charge.”

It may also be stated in passing that the basis of making-some of the contractors and sub-contractors parties defendant is, in brief, that they, having knowledge of the insecurity of the foundation, proceeded with then- work and thereby further-weakened the foundation and enhanced the danger, upon the principle that whoever participates in the construction of any structure which is obviously dangerous to human life is a party to the creation of a nuisance. But, as has been stated, the jury exonerated them from fault.

The judge, in his charge to the jury, after stating the principle which I have just mentioned, continued by saying that the structure must, however, be so threatening as to constitute an impending danger to persons in the enjoyment of their legitimate rights; that the plaintiff in order to recover against any defendant in this action is bound to show by evidence to the satisfaction of the jury that there was some defect in such defendant’s work, which, as a reasonably prudent man he knew or should have known was of such a character as to render the structure a menace or danger to human life, one that was obviously dangerous to human life, one so threatening as to constitute an impending danger to persons in the enjoyment of their legitimate rights. The rule thus laid down by the learned trial judge for determining the defendant’s liability is as stated in *Cochran*v. *Sess.*(168 N. Y. 312), and almost in the identical words of Judge O’Brien, who wrote for the court in that case.

In *Melker*v. *City of New York*(190 N. Y. 481) the question of what constitutes a nuisance is discussed at length, and the definition of a nuisance as there stated, applicable to the circumstances of that case, is that if the natural tendency of the act complained of is to create danger and inflict injury upon per*825son or property, it may properly be found a nuisance as a matter of fact; but if the act in its inherent nature is so hazardous as to make the danger extreme and serious injury so probable as to be almost a certainty, it should be held a nuisance as a matter of law. That definition was reiterated and the rule applied in the case of *Hogle*v. *Franklin Mfg. Co.*(199 N. Y. 388).

It is true that the defendant’s negligence lies at the foundation of this action, but the nature of the action is one essentially for creating and maintaining a nuisance. As is said by Mr. Justice Woodward in *McNulty*v. *Ludwig & Co.*(153 App. Div. 206, 213): 11 The existence of a nuisance in many, if not in most instances, presupposes negligence. These torts may be, and frequently are, co-existing, and practically inseparable; as, where the same acts or omissions constituting negligence give rise to a nuisance.”

I will not collate the cases upon the question as to what constitutes a nuisance, nor attempt to point out the limitations of the general definitions by which courts have attempted to define a nuisance. It is sufficient, I think, to say that in my judgment the rule stated to the jury was applicable to this case, and that upon the evidence the jury was warranted in finding the defendant city liable.

As we have seen, the plans for the foundation were materially changed. It was soon apparent that the east wall would not withstand the lateral pressure. The proof tends to show that according to the original plans the wall was designed as a bearing wall, not as a retaining wall, and it also appears by the testimony of experts that the wall should have been at least twelve feet wide at the base, resting in a trench in the rock, and keyed; that the filling inside should have been done simultaneously with that on the outside of the wall; that the buttresses weakened rather than strengthened the wall, because they were not firmly embedded and secured at the base, and when the stone foundation settled they were left hanging at the side; that the driving of the piles so close to the east wall further increased the lateral pressure, while if the concrete foundations originally planned for the porticos had been put in they would have served to strengthen the wall and resist the *826pressure of this compact mass of filling. In short, that a foundation had been constructed which was insecure, and that the structure was so dangerous as to constitute a nuisance within the rules to which I have adverted.

It should be stated, however, in fairness to the city and its officers, that they contend that if there was any fault in the plans or in the construction of the work, it was not their fault; that engineers of skill and experience were employed, and that so far as Mr. Fields or any of the representatives of the department of public works had to do with the work, it was not only well planned, but properly done; that the buttresses were entirely adequate and held the east wall firmly in place; but that there were changes and omissions made in the work, for which neither the city nor its officers are responsible, which caused the collapse. However, the. jury was fairly charged upon those questions and found against the defendant city.

*2.*But it is contended on behalf of the city that the plaintiff’s intestate was at most a licensee upon the premises, and that the city owed him no active duty to have the building or premises in any particular condition or to do or refrain from doing any particular act, except not to willfully injure him.

It appears that the Orooker Company, the principal contractor for the superstructure, sub-contracted the sheet metal work and roofing to G-. H. Peters Company, and the plaintiff’s intestate seems to have been doing his work under some arrangement with the Peters Company. He had several men working with him, slating the roof of the building, when it collapsed. It is urged that under the terms of the contract between the Orooker Company and the city the Orooker Company could not sublet the work without the consent of the city. The record is silent upon the question as to whether the city consented or not. But whether the city formally gave its consent or not, I think we may fairly assume that he was rightfully there, engaged in doing his work, furthering the completion of the building, and that the work which he was doing was included in the general contract between the Orooker Company and the city; that the city through its proper officers so recognized his status, and that at least he was there by the implied invitation of the city. Under such circumstances I think the city is liable for his death, *827assuming, of course, that the other necessary facts have been established.

3. Measurements were made after the collapse of the building, showing that the east wall had moved several inches westward after the work on the superstructure was begun, and it is claimed it was error to show this. It is urged that there is no presumption that the wall was not disturbed by the collapse of the building. I think, however, the circumstances were such that it could be found that the location of the wall was not changed by the collapse of the building.

4. It is further urged on behalf of the defendant city that the trial court erred in instructing the jury that Wallace as superintendent of construction was the agent of the city. I deem it sufficient to say that I think the charge was correct. It is possible that he may not have been the agent of the city in all that he did in the way of planning and superintending the works, and to some extent he may have exercised independent judgment, but in some respects at least it would seem that he was the agent of the city. If counsel desired to limit the charge in any way, that should have been done by an appropriate request. Furthermore, I do not see how it could affect the result because the jury found Wallace was not at fault.

There are other exceptions to the charge. They have all been considered, but, I think, they are not well taken. I think that no error was committed which would justify the granting of a new trial.

I, therefore, reach the conclusion that the judgment and order appealed from should be affirmed, with costs.

All concurred, except Foote, J., who dissented upon the ground: *First,*that the plaintiff’s intestate was a bare licensee, for whose injury the defendant city would not be liable because of a nuisance upon its private property; *second,*that the evidence does not support the theory on which alone the verdict rests, viz.: That the collapse of the building was due to the defects in the foundation wall.

Judgment and order affirmed, with costs.