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[Vol. 86.

The gas holder had been constructed, was in place and substantially completed; but as the gas had not been connected, and as the pressure of the water was exerted against the sides of the tank and not against the sides of the holder, it is conceded that it had no connection with the accident and consequently it need not be described. The precise point at which the tank first gave way was not shown by any eye-witness. Evidence was given, however, tending to show that the principal fracture was at the northeast quarter of the tank ; that the plates were fractured from the bottom to the top at the northeast and northwest quarters of the tank about one hundred and five or one hundred and twenty feet apart, and the section of the side between these fractures at its easterly end was moved out at the bottom and forced up the side of the pit toward Twenty-first street about thirteen feet and held in at the top by the guide frames which had pitched toward the center of the tank, and this end of the side was bent out in the middle in the shape of the letter C; that at the other end it had moved out only one foot and nine inches toward Twenty-first street, but had moved westward three feet and nine inches, so that it had pivoted around and opened a V-shaped crack; that this was the only point where the fractured parts that had been together had moved in opposite directions; that the upper part of this section tore off and was carried across Twenty-first street; that there was also a fracture at the southwest quarter of the tank extending nearly from the bottom to the top, and another fracture less extensive in the southerly or southeasterly side, and other smaller fractures elsewhere.

The steel plates were manufactured by a reputable concern, were of good material and suitable for this use. According to the testimony of the expert called by the plaintiff, the plans and specifications were proper, and if the tank had been constructed of the steel plates that were used, in accordance therewith, there would have been a factor of safety of more than three, i. e., that it would have withstood a pressure more than three times as great as would be exerted upon the sides of the tank when filled with water. The rivet holes in the plates forming the bottom course of the sides were punched. The plans provided that the rivet holes in the three lower courses should be drilled. The plaintiff's expert testified that it is not proper to punch holes in steel plates more than an

App. Div.]

FIRST DEPARTMENT, JULY TERM, 1903.

inch in thickness; that punching rivet holes in such plates a quarter of an inch thick weakens the plates, aside from the loss of the metal removed six per cent, and punching a hole in a plate one inch in thickness likewise weakens it twenty-five per cent; that punching holes in these plates which were one and one-half inches in thickness would weaken them about thirty-six per cent owing to the hardening of a ring of metal around the hole by compression and forcing the particles into the wall of the metal which would lessen its tensile strength, and that they would be additionally weakened by fine or incipient cracks which are always started on the die side by punching which would take up part and might take up the whole of the remaining factor of safety in the strength of the metal; that after the rivet holes were punched in these plates the plates were bent to the proper curve and the die side of one of the lower plates at the northwesterly quarter formed the convex or outer side which tended to further open the incipient cracks incident to the punching; that the crack at the northeasterly quarter extended across the bottom plate a little over six feet from the nearest and intersecting two rivet holes, one, two and three-quarter inches from the bottom and the other near the top of the plate; that the lower of these rivet holes was designed to be one and one-quarter inches in diameter and the upper one one and one-half inches, but they were a little larger; that in the line of these fractures, which were very coarse grained and of a yellowish color, he found on the outer side of the plate evidence of "a fine grain with a dark brown color showing an older break" extending up and down from the lower rivet hole through the hardened ring caused by punching a distance of about three-fourths of an inch and penetrating about half the thickness of the plate; that these finer grained fractures were such as are made by punching; that different causes produced the coarse grained fracture and the fine grained fractures; that where holes are punched they should be reamed to remove the ring of hardened metal, but that these holes were not reamed; that punching the holes in these plates and curving them for the sides of this tank with the die sides out would weaken them so as to reduce the factor of safety below one and they would not be strong enough to sustain the pressure with the tank full of water, and he further testified, assuming the finer grained cracks to have

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[Vol. 86.

been made by punching, that these would also so diminish its resisting power that it would give way under the pressure with the tank full of water.

The contract price of the work was $167,500 payable in installments as the work progressed, upon the certificate of the company's chief engineer that the work had been performed in accordance with the plans and specifications. The gas company reserved the right to make changes and alterations in the work as it progressed. The contractors had been paid $120,500, all that had become due.

The defendants gave evidence tending to show that the plates were carefully inspected after being punched and that there were no fine or incipient fractures made by punching and that they were properly reamed. The contractors gave evidence from which it may be inferred that these holes were punched, instead of being drilled, by direction of the chief engineer of the gas company. The other material facts are stated in the opinion.

David McClure, for the appellant Consolidated Gas Company.

Frank Verner Johnson, for the appellants William J. and Frank J. Logan.

Ferdinand E. M. Bullowa, for the respondent.

LAUGHLIN, J.:

Counsel for the respondent contends that the accumulation of this large body of water in a tank above the surface of the earth and allowing it to be precipitated on adjacent premises where the plaintiff was lawfully at work in the employ of the owner or lessee thereof constituted a trespass, for which both the gas company and the contractors are responsible since they participated therein, and that they are liable for the injuries inflicted upon him regardless of any question of negligence.

It has been held that an owner of land is liable in trespass for damages caused to persons or property upon a highway or neighboring premises, no matter how carefully the work is conducted, by falling rock blasted in making an excavation for improving his premises, and that if the work is done by an independent contractor the contractor alone is liable. (Sullivan v. Dunham, 161 N. Y. 290, and cases cited; St. Peter v. Denison, 58 id. 416; Hay v.

App. Div.]

FIRST DEPARTMENT, JULY TERM, 1903.

Cohoes Company, 2 id. 159; Berg v. Parsons, 156 id. 109.) On the other hand, it has been held that trespass does not lie for damages sustained by the explosion of a steam boiler, an explosion in an oil refinery, or the breaking of a fly wheel precipitating something upon a person in the highway or on adjacent premises, and that in such case negligence must be shown to warrant a recovery. (Losee v. Buchanan, 51 N. Y. 476, 479; Piehl v. Albany Railway, 30 App. Div. 166; affd., 162 N. Y. 617; Cosulich v. Standard Oil Co., 122 id. 118.) The distinction attempted to be made between these classes of cases is that in one the owner or contractor was in the act of moving the material which inflicted the injuries, while in the other the material was set in motion involuntarily, casually and incidentally. (Sullivan v. Dunham, supra.) In the case at bar neither the contractors nor owners were at the time engaged in the act of moving the water and they were guilty of no affirmative act which caused it to move from the tank. But even if this fact would bring the case within the doctrine of the explosion cases already cited, it would not be decisive of the question as to whether the defendants are liable on the theory of trespass, at least, not as to whether the owner would be liable on that theory. This was an artificial accumulation of water, and the weight of authority is to the effect that an owner who interferes with the natural fall or flow of water which results in its being precipitated upon or percolating through into the premises of another in a channel or manner different from that which would have resulted from the natural fall or flow of the water, is responsible for the damage caused thereby ; in other words, that one who accumulates water on his own premises, whether in a reservoir or otherwise, does so at his peril. (Bellows v. Sackett, 15 Barb. 96; Pixley v. Clark, 35 N. Y. 520; Jutte v. Hughes, 67 id. 267; Mairs v. Manhattan Real Estate Assn., 89 id. 498; Schwab v. Cleveland, 28 Hun, 458; Davis v. Niagara Falls Tower Co., 171 N. Y. 336; Finkelstein v. Huner, 77 App. Div. 424; Reed v. State, 108 N. Y. 407; Rylands v. Fletcher, L. R. 3 H. L. 330.) The question whether owners or contractors, or both, would be liable in trespass is one not easy of solution, and we think it should not be decided upon this appeal. As shown in the statement of facts, the complaint is framed on the theory of negligence and the record indicates that the action was tried upon that theory.

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The plaintiff, therefore, may not, upon the appeal, rely upon a cause of action for trespass. If he desired to present that question he should have tried the case on that theory.

Upon the trial the plaintiff did not rely upon the doctrine of res ipsa loquitur, but assumed the burden of pointing out the particular negligence with which he charged the defendants. The precise negligence charged and presented by the evidence is improper construction or workmanship in punching the bottom course of side plates which were too thick to render that a safe method of making holes for the rivets, in failing to ream the holes after punching, in convexing the sides of the plates that were next the die in punching, and in failing to discover and reject plates in which incipient cracks had been caused by the punching process. This work was done by the contractors. There is evidence from which the jury might have inferred that it was done with the knowledge of the chief engineer of the gas company, who was its authorized agent daily in charge of supervising the work, and there is also express evidence that this departure from the method of performing the work provided for in the plans was made by the direction of the chief engineer. We are of opinion that this evidence was sufficient, not only to require the submission of the case to the jury as against the gas company and contractors, but to justify a finding of negligence on the part of all defendants. The uncontroverted evidence is to the effect that the plans and specifications were adequate, if followed, not only to produce a tank of sufficient strength to sustain all the water that it would hold, but to afford a factor of safety of three. There was no storm, no evidence of any external violence, and the record is barren of any fact or circumstance tending to account for this accident upon any theory except unskillful and improper construction and workmanship with respect to punching instead of drilling these holes, unless there was some flaw or defect in the material, which is not specifically pointed out by evidence.

Counsel for the gas company contends that it delegated the performance of this work to independent contractors of reputed competency and skill; that the work was still in the hands of the contractors, had not been accepted by it, and that, therefore, it is not responsible. We regard this argument as untenable. It is claimed on the other hand that the gas company retained such.