138 N.Y.S. 695 | N.Y. App. Div. | 1912
Dissenting Opinion
This is an action to recover damages'for personal injuries sustained by the plaintiff while in the employ of the copartnership firm of William Baumgarten & Co., composed of the defendant William Baumgarten and Emile Baumgarten, as a plasterer’s laborer on the 30th day of October, 1907, caused by the fall of a hod-hoisting elevator in a building then being erected at the northeast corner of Fifth avenue and Ninety-second street, borough of Manhattan, New York. The defend - ant the Andrew J. Robinson Company, a domestic corporation, was the general contractor with the owner for the erection of the building;' and, pursuant to a contract with it, the Stanley Hod Elevator Company, also a domestic corporation, installed a hod-hoisting elevator in the building and an engine and boiler outside but connected therewith, for the purpose of operating the elevator, and furnished an engineer to operate the same.
On the day of the accident the plaintiff was directed by his foreman to remove two loads. of mortar from trucks in the street and to convey it on this hoist to the fourth floor of the building. The mortar was in sacks. He first carried them from the trucks to the vicinity of the hoist and then put them on the hoist eight sacks at a time, four on a wheelbarrow and four on the floor of the hoist, which was then elevated to the fourth floor, where he removed them. He testified that he took up three or four loads, and' that then on the trip on which he
Section 18 of the Labor Law, in force at the time of the accident, provided as follows: “A person employing or directing another to perform labor of any kind in the erection * * * of a house, building or structure, shall not furnish or
I am of opinion that the court erred in dismissing the complaint. The hod elevator company does not come within the terms of the statute; but with respect to it I think that the plaintiff presented a prima facie case of negligence. On the facts disclosed by the record the cable would not have broken if it had not been defective, and the defect could have been discovered by proper inspection. It-was the duty of the hod elevator company under the principles of the common law to exercise reasonable care in furnishing a safe hoist and appliances, and to inspect the same at such intervals as the danger to be apprehended from a defect therein required. It is inconceivable that this accident would have happened, as shown by the evidence, if it had performed this duty.
The general contractor, who caused the hoist to be installed for its own use and the use of its sub-contractors and their employees in performing work for it, is clearly liable under the statute, for the hoist at the time of the accident manifestly was unsafe, unsuitable and improper for such use. (Gombert v. McKay, 201 N. Y. 27; Caddy v. Interborough R. T. Co., 195 id. 415; Warren v. Post & McCord, 128 App. Div. 572; affd., 198 N. Y. 624; Dougherty v. Weeks & Son, 126 App. Div. 786; McMullen v. City of New York, 110 id. 117; Huston v. Dobson, 138 id. 810; Quigley v. Thatcher, 144 id. 710; Madden v. Hughes, 104 id. 101; affd., 185 N. Y. 466; Tiedjen v. National Elevator Co., 141 App. Div. 529; Smith v. Variety Iron & Steel Works Co., 147 id. 242.)
The liability of a sub-contractor making use of a hoist owned by a hod elevator company and installed and operated by it under a contract with the general contractor, as did the plaintiff’s employer, has not been decided by the Court of Appeals, but in Bohnhoff v. Fischer (149 App. Div. 747) the
It follows, therefore, that the judgment should be reversed and a new' trial granted, with costs to the appellant to abide the event.
Dowling, J., concurred.
Judgment reversed as against the A. J. Robinson Company and the Stanley Hod Elevator Company, and new trial ordered, with costs to appellant to abide event; as to defendants Baumgarten, judgment affirmed, with costs. Order to be settled on notice.
Lead Opinion
For the reasons stated by Mr. Justice Laughlin in his opinion, we agree that the judgment as against the Andrew J. Robinson Company and the Stanley Hod Elevator Company should be reversed, and a new trial ordered, with costs to appellant to abide the event.
As to the defendants Baumgarten, the judgment is affirmed . upon the authority of BohnhoffY, Fischer (149 App. Div. 747).
McLaughlin and Miller, JJ., concurred; Laughlin and Dowling, JJ., dissented.