121 N.Y.S. 180 | N.Y. App. Div. | 1910
The plaintiff, a mason’s helper, was wheeling a wheelbarrow, loaded with fire bricks, from a hoist at the seventh floor of a building in the process of construction, when his foreman, one David Haw, who had temporarily taken the place of the signalman, gave a. signal to the engineer to lower the hoist before the plaintiff got safely away from it, for so the jury were justified in finding, with the result that the plaintiff was precipitated down the shaft, receiving the injuries for which he has recovered. The defendant was the general contractor, but had sublet portions of the work, among other things, the work of putting in the Herculean arches, for which the fire bricks were being carried to the seventh floor and unloaded. The court submitted to the jury the questions, inter alia, whether the plaintiff and Haw were in'the employ of the defendant at the time of the accident, and whether Haw’s act was a negligent act of superintendence. Other grounds of negligence were submitted to the jury, but as no exception was taken to their submission, and-as no question is raised on this appeal relative to them, they' need not
A preliminary question is presented by the appellant’s claim that the plaintiff failed to prove service of the notice before the commencement of the action. The defendant admitted receipt of the notice on ór about June 4, 1906, whereupon the plaintiff offered it in evidence without making proof that that was before the commencement of the action. The defendant’s counsel objected that no foundation was laid for the admission of the notice, and then proceeded to state several specific grounds, not referring in any way to the omissio'n to prove that the service was prior to the commencement of the action. . It is obvious that the specific grounds stated were assumed by the court and the opposing counsel to be the ones relied upon, and, without suggesting that counsel was disingenuous in thus making the objection, the manner of taking it was almost certain to divert attention from the point now relied upon. The case had been tried once, and the notice had been received in evidence. It is quite obvious that, if the specific objection now relied upon had been made, it would have been obviated, probably, by the admission of counsel; and while the general objection was broad enough to cover the point, we do not think that it justifies or requires the granting of a new trial.
The jury were justified in finding that tlie plaintiff and Haw were in the employ of the defendant; that while the defendant had sublet that part of the contract upon which they were employed at the time of the • accident, he had, by a subsequent arrangement with the sub-contractor, undertaken to perform the labor on the part thus sublet; that'in place of loaning'his men to the'sub-contractor as is now claimed, he in fact retained control and supervision of them; that the sub-contractor’s representative, oné John C. Hall, did not" exercise any authority over the workmen, but only supervised the work to the extent of supplying the technical knowledge which the' defendant’s men did not possess, and that at least there was no change of masters observable by the workmen who were concededlyin the general employ of the defendant.
The movement of the hoist was controlled by the engineer.When the hoist was loaded in the basement -and ready to ascend, a man there signaled the engineer by pulling the bell rope and, when it was ready to descend for another load, a man on the floor where it was unloaded likewise signaled the engineer. An ordinary work-' man had been giving the signals on the day of the accident, but Haw had directed him to do some other work and had temporarily taken his place. The evidence justifies the inference that he had done that for the purpose of hurrying up the men who were taking the loaded barrows from the hoist. One of those men testified: “ He was ordering us around there. He ordered us to get a move on ourselves and shake it up, and was there ringing the bell and giving signals. He had been there at the hod hoist giving signals about fifteen minutes before the accident happened,” Another testified : “ He told us that he was in a hurry and he wanted us to. distribute that stuff around to get ready for the bricklayers to go to work on that floor.”
■ Section 18 of the Labor Law, now chapter 31 of the Consolidated Laws, provides: “A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure, shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life arid limb of a person so employed or engaged.” Although that statute has been in effect for many years, I am not aware that the words “so * * * operated” have been the subject of judicial construction. -If the statute imposes the absolute duty on the master to run hoists safely, it is immaterial whether the act of giving the signal be treated as one of superintendence. “To operate ” a machine means “ to work the machine, or, in other words, to regulate and control its management and operation.” (Opinion
The judgment and order should be affirmed, with costs.
Ingbaham, P. J., McLaughlin and Laughlin, JJ., concurred.
Judgment and order affirmed, with costs.