156 N.Y.S. 314 | N.Y. App. Term. | 1915
Defendants appeal from a judgment in favor of plaintiff in an action for personal injuries. Plaintiff was employed as a plasterer by one McDermott, a subcontractor, in the construction of an addition to a church building, for which work the defendant Walker Company was the general contractor, subcontractor McDermott’s work having only to do with the plastering. While so éngaged at work a ceiling, which had been constructed by another subcontractor, and upon which plaintiff was engaged in doing plastering work, fell, injuring plaintiff.
Evidence was introduced by the plaintiff tending to show that the ceiling constructed by the other subcontractor had been constructed in violation of the rules of the bureau of buildings, and that the defendant Walker Company, through its representatives, not only had knowledge of the manner in which said work was unlawfully done, but actually participated in exercising control and direction over the manner in which it was done. Evidence in contradiction thereof was presented by the defendant company. On all the evidence there were three issues for the jury: -First, whether the work of constructing the ceiling was done in an unlawful manner; second, whether the defendant Walker Company participated in and exercised control and direction over the manner in which such work of construction was done; third, whether, if the work was done in an unlawful manner, the defendant Walker Company had knowledge of the fact that the work was being done in violation of law and permitted said work to proceed in an unlawful manner.
It is well established by the authorities that ordinarily a general contractor who sublets part of the work of construction on a building, relinquishing the right of control and direction over the work so sublet, and exercising only such general superintendence as
The courts have invariably held that every person violating a statute is a wrongdoer, negligent in the eyes of the law, and that any innocent person injured by such violation, if it be the proximate cause of the injury, may, in a proper case, recover damages from employer and contractor jointly or severally, it not being in the power of an owner or general contractor to escape liability by making a contract with another to commit the wrong for him.
In submitting the case to the jury, the trial judge, under exception by defendant’s counsel, charged the
Again, the court was asked, by the defendant, to charge: “ That the defendant George L. Walker Company is not responsible for and cannot be held to respond in damages for any negligent act or omission on the part of the defendant McDermott, his servants, agents or employees,” to which the court replied : “ I decline to charge in that language. I will charge, unless he knew of any negligent act or omission. ’ ’ To this refusal and modification of the request, defendant excepted. This ruling was prejudicial and
Page and Philbin, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.