211 A.D. 586 | N.Y. App. Div. | 1925
Lead Opinion
The death of the plaintiff’s intestate occurred during the construction of a new grand stand at the Buffalo base ball grounds. A steel column which had been hoisted into place and on which men were still working to attach beams or struts fell and in falling struck plaintiff’s intestate, another workman but not engaged in working on this column, and caused him injuries from which he died.
At the time of his death deceased was in the employ of the Bancroft-Jones Corporation which had a contract with the owners of the grounds to furnish and erect all structural steel upon the stand. The defendants Benzinger also had a contract with the owners to furnish all materials and do all work for the construction and completion of the stand except furnishing and erecting the structural steel.
Both these contracts provided that the work should be done according to drawings and specifications prepared by the defendant Osborne Engineering Corporation, which as supervising engineer had complete charge of construction.
The grand stand was built of concrete with steel columns supporting steel trusses for the roof. These columns were in the shape of H-beams, twenty feet in height with a base plate eight inches by eighteen inches in dimension in which there were holes to permit the anchor bolts, to pass through. The columns weighed
There was also evidence to the effect that the Bancroft-Jones Corporation when erecting the column did not know that the bolts which were used in the drilled holes were not split end or expansion bolts. Under these circumstances questions of fact for the jury were presented as to the negligence of both the defendant Osborne Engineering Corporation and of the defendants Ben-zinger. As to the latter, negligence could be predicated upon the failure to use split end or expansion bolts, or if such bolts were not used upon the failure to notify the steel erector of the kind actually used. The jury might well say that the fact that the steel erector was already engaged in erecting some of the columns at the very time the bolts were being grouted in, made it obviously necessary for the defendants Benzinger in the exercise of due care to use such bolts as would enable the erector to proceed in the usual way without delay or give such notification that the steel erector might modify the method of doing the work so as to insure safety to the workmen. In the latter case guys and other supports could have been used to secure stability without reliance upon the anchor bolts for support while the grouting was still unhardened. There was proof that the mode of erecting employed by the Bancroft-Jones Corporation, with reliance upon the anchor bolts for support of the columns, was an ordinary and usual method for the prosecution of such work. i$!
The jury, to be sure, might have found that the Bancroft-Jones Corporation was negligent in relying on the strength of the anchor bolts as a support when the wet condition of the cement and the dangers therefrom ought to have been known to that company and put it on inquiry as to the condition at the lower end of the bolts. But such negligence on the part of the Bancroft-Jones
The absence of contract relation between the deceased and the defendants Benzinger and even between the deceased’s employer, the Bancroft-Jones Corporation, and the defendants Benzinger is not a bar to recovery. Where one creates a situation which is inherently dangerous for persons who thereafter use it in the way it is intended to be used or in the way that the creator of the danger knows it is to be used, the person from whose affirmative act the danger arises is responsible to one receiving injuries through such use. (Connors v. Great Northern Elevator Co., 90 App. Div. 311; affd., 180 N. Y. 509; MacPherson v. Buick Motor Co., 217 id. 382; Rosebrock v. General Electric Co., supra.)
As to the defendant Osborne Engineering Corporation negligence may be based on its failure to notify the Bancroft-Jones Corporation, the steel erector, of the actual conditions after authorizing and directing the placing of the anchor bolts in the drilled holes with their strength as supports wholly dependent on the resistance of the still unhardened cement at the time when it was apparent that the erector, pursuing the same method of work that it has been using, would rely upon the support of the bolts in putting the steel columns in place. This was not mere non-feasance for which a supervising engineer or architect would not be liable-to any one but the owner with whom there was privity of contract. (Potter v. Gilbert, 130 App. Div. 632; affd., 196 N. Y. 576.) For defects in the original plans and the approved detailed plans arising from negligence on the part of the Osborne Engineering Corporation, that company would clearly be responsible. (Ryan v. Feeney & Sheehan Building Co., 239 N. Y. 43, 45.) When the defendants Benzinger deviated from the original plans, a new situation arose which required a new plan, or at least a new direction to the contractors in place of the original plan. The duty to take care of the situation which had then arisen rested on the defendant Osborne Engineering Corporation, and it recognized such duty and took steps in accordance with it. The superintendent of that company gave direction as to how the problem was to be met. Negligence in this act is the same as negligence in respect
It is urged by the appellants that reversible error was committed by the learned trial court in the charge. We think that the charge considered as a whole fairly presented the questions for determination to the jury.
Dissenting Opinion
(dissenting):
I dissent upon the ground that the charge permitted the jury to predicate a verdict upon negligence on the part of the defendants Benzinger in failing to set the anchor bolts in the first instance when the concrete for the floors was poured, and on the part of the defendant Osborne Engineering Corporation in failing in its superintendence to require the anchor bolts then to be set. Exceptions raising these points were taken by both defendants. The fault in these respects had spent its force when all parties, including the steel erector, gained knowledge of the actual situation and continued operations with the actual situation in mind. (Rosebrock v. General Electric Co., 236 N. Y. 227.) This negligence was, therefore, not the proximate cause of the accident.
Judgment and order affirmed, with costs.