Opinion
Argued December 6, 1916
Decided December 28, 1916
Amedio A. Bertini and David C. Hirsch for appellant.
James F. Donnelly for respondent.
This is an action for injuries resulting in death. One Gilmartin was the owner of a house and lot in the city of New York. A new street was opened at a lower grade, and the defendant was employed to grade it. About five feet of earth remained between the new street line and the house, and this earth the defendant undertook to remove for the owner. As a result of the change of grade the portico had been demolished, but its roof was left, and was supported by timbers fastened firmly in the ground. While the house was in this condition, Gilmartin made a contract with a mason, one Marino, to build a wall along the excavation, but this could not be done till the excavation was finished. Marino in turn employed the plaintiff's intestate, Constantino.
On September 20, 1911, Constantino and his employer came to the scene of the work to see whether they could go on with it. They were told it was not ready for them. There is evidence that Constantino began to make preparatory measurements. While he was there, the defendant's wagon drove up to carry off a load of earth. The driver tried to place the wagon parallel with the house. As he backed up, the front wheels caught in a hole; the driver pulled at the reins; and finally when the wagon moved, it came back so violently and quickly that it was driven against the timbers which held the portico, and threw them to the ground. At this moment Constantino was standing on Gilmartin's land. The timbers fell on him and killed him.
The plaintiff had a verdict against the Watson Contracting Company, the employer of the driver. The Appellate Division reversed and dismissed the complaint on the ground that there was no evidence of negligence. We read the record otherwise. In backing up his wagon the driver was under a duty to take heed of his surroundings. Unmindful of his proximity to the building, he pulled the reins continuously and urged his horses back. We cannot say that the only inference to be drawn from his conduct is one of inevitable accident. The inference is at least permissible that he was driving violently and carelessly. To knock down heavy timbers securely fastened in the soil does not suggest a reasonable measure of caution or control. The case, we think, was for the jury.
The defendant argues that Constantino was a trespasser or at best a licensee, and that the defendant's only duty was to refrain from willful injury. The argument is without force. The rule invoked by the defendant applies only between the licensee and the owner of the land. It has no application between a licensee and strangers or other licensees ( Wittleder v. Citizens El. Ill. Co., 50 App. Div. 478, 480). There is a distinction, moreover, between the consequences of active and passive negligence ( Byrne v. N.Y.C. H.R.R.R. Co., 104 N.Y. 362, 366, 367; Walsh v. Fitchburg R.R. Co., 145 N.Y. 301, 306). But Constantino, even relatively to the owner, was not a licensee within the meaning of the rule. He was there at the owner's invitation and in connection with the owner's business ( Heskell v. Auburn L., H. P. Co., 209 N.Y. 86).
Our conclusion is that the Appellate Division erred in dismissing the complaint. Its order shows, however, that it reversed on the facts as well as on the law. Its disapproval of the verdict on the facts is beyond our power of review and leads to another trial ( Junkermann v. Tilyou Realty Co., 213 N.Y. 404; Meisle v. N.Y.C. H.R.R.R. Co., 219 N.Y. 317).
The judgment of the Appellate Division so far as it dismisses the complaint should be reversed, and a new trial granted, with costs to abide the event.
WILLARD BARTLETT, Ch. J., HISCOCK, COLLIN, CUDDEBACK, HOGAN and POUND, JJ., concur.
Judgment reversed, etc.