The sun. [volume] (New York [N.Y.]) 1833-1916, 1902-01-30
THE B-CONTRACHOR LIABLE.
HE SEEMS TO BE THE MANIC PAY
FOR EXPLOSION DAMAGES.
Contractor Mcdonald May ne Jointly
Responsible. but the Courts Hold
Apparently That the City Is Exempt
Losses by Death Have Precedence.


Many persons in this city want to know
who IL going to pay for the lives lost, Tor
the bodily injuries sustained and for the
damage TO property caused by Mondays
explosion on the subway work In Park
avenue. From inquiry la yesterday
II would appear that. primarily, and, per-
haps, the only person from whom damage
can be collected Is the sub-oontractor
Major Ira A. Shaler. Apparently In no
event can the city be- held for damages
A. H. Hummel OF Howe Il Hummel said;
.Of course, many damage suits will be
instituted and the wise lawyer, that no
guilty defendant may escape, will sue the
| city, Contractor Mcdonald and the sub
| contractor, Shaler. Having been retained
to begin one suit. we have been looking up
| the law and. TO be perfectly frank, we have
| been forced to the conclusion that, as MIR.
Mcdonald says, the city, In all these cases,
| will be out Of it. All of the decisions OF
| the Court Of Appeals that / have been able
TO find support this statement. Here are
| some Of them. You will see that the recent
| ones all bark back to the case Of Pack against
| the city of New York, decided by the Court
OF Appeals In March, 1883, which seems to
be as good law now as it was half a century
ago"
In the Pack case the plaintiff lived at
Broadway and Fortieth street. The city
let n contract to one James Foster to 'regu-
late the road between T~wenty-third and
Forty-second streets. Foster sub-let the
contract for the blasting TO one Riley. In
August, ls47, Riley fired a blast within
thirty-two feet of Packs house. and some
of the pieces Of rock were thrown into the
house, i~njuring his wife and killing one OF
his children. Foster sued the city. He
got q verdict at the jury trial and this YER
dict was sustained up to the Court OF APP
peals, which reversed the decision OF the
lower courts. Evidence wa Introduced
on the trial tending TO show that the blast
had been conducted negligently.' Judge
Jewett, writing the opinion OF the Court
Of Appeals. held:
II the injured party attempts 20 recover
for his loss against any one other than nun
Il can only be on the ground that the relation
Of principal and agent, or master ana servant.
sso oinS ,b between SSt ne TRRsef % Doctrine ena t is. that a
person who undertakes the erection OF "a
building. or other work, for his own benefit,
Is not responsible for injuries to thlrd per-
sons occasioned by the negligence OF a person,
or his servant, Who is actually engaged in
eXccuting the whole work, under an lnde-
pendent employment, or a general contract
for that purpose. Foster was such a con-
tractor. 80 for whose negligence, or that
OF his servants, the defendant Is not liable.
This decision would seem to settle the
question of the city's liability for damages
from the subway explosion. In another
case 10 which Mr.. Hummel referred, that
Of Berg against Parsons, decided by the
Court OF Appeals in June, 1898, the ma
iority opinion, written by Judge Martin,
contains the same ruling 81 does the
decision in the case Of t~ppington against
the city of New York, decided 10y the Court
of Appeals in January. leOl.
"You will see" said Mr.. Hummel, that
| these decisions not only seem To put the
city out Of il, but TO put the responsibility
for damages resulting from such accidents
az that Of last Monday upon the person
actually performing work In uIis case.
that person would be Shaler. But the
question Of responsibility as between a
| contractor and a sub-contractor has not,
70 far as 1 have been abie 90 learn thus far
been definitely settled. We hold that
since Mcdonald had general supervision
over and direction of Shaler. he lie jointly
responsible An
suits brought by relatives Of thuse who
lost their lives by the explosion have pre-
ference on the calendar and viii he tried
first. II Il should happen that Shaler's
and McDOnalds and the amount
Of their bonds become exhausted In paying
damages 90 relatives Of the dead. those
who claim damages for bodily injuries OF
FOR prlpsry viii be- lrlt iu the urCh II
the courts should hold that only Nialer
10 liable. thu latter class of htigaLts would
be rtul wufas N