96 N.Y.S. 530 | N.Y. App. Div. | 1905
The facts in this case are not in dispute to any great extent, and may be summarized as follows:
The plaintiff’s intestate was engaged as a laborer by the defendants, and was employed on the first floor of the new Eagle building in the borough of Brooklyn at the time of the accident. The Pelham Operating Company had installed an elevator in this building, which was in course of construction by the defendants, and this elevator was operated by an engineer supplied by the Pelham Company, taking his signals for starting and stopping the, same from the employees of the defendant, in accord with a signal code provided by the operating company. The plaintiff’s intestate was engaged in loading and unloading wheelbarrows upon the elevator. While standing, waiting for the elevator to descend, and when it had reached a p.oint about even with his head, the platform, loaded with empty wheelbarrows, suddenly stopped and one of the wheel-' barrows was thrown from its place, striking the plaintiff’s intestate and throwing him off the platform on which he was standing, precipitating him to the basement, where lie sustained injuries resulting in his death. The complaint made the Pelham Company a party defendant, but on motion the complaint was dismissed as to this company, and the case was disposed of as a matter of law on the theory that the accident resulted because of the fact that the defendants, who were the general contractors for the construction of the building, had failed to guard the elevator shaft in the
Notwithstanding this view of the Case, we are persuaded that under the motions to dismiss the complaint and for a new' trial under the provisions of section 999 of the Code of Civil Procedure, the-defendants ha,ve raised a question fatal to the plaintiff’s recdvery in this action, because, conceding the facts as they appear in evidence, - the plaintiff has failed to establish actionable negligence, for the
Without assuming to pass upon' the question of who was responsible for the sudden stopping of the elevator,' no negligence in this respect being alleged in the complaint as against the present appellants, it must be evident, under all pi the authorities upon the question, that this was the proximate cause of the accident; it was the efficient cause, the one without which the accident would not have occurred. Wharton on Negligence (§ 134), considering such a situation, says: “ Supposing that if it had not been for the intervention of a responsible third party the defendant’s negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff ? This question must be answered in the negative for the general reason that casual connection between negligence and damage is 'broken by the' interposition of independent responsible human action. I am negligent on a particular subject-matter as to which I am not contractually bound. Another person, moving independently, comes in and either negligently or maliciously so-acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a non-conductor and insulates my negligence so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured.” This view is quoted with approval in Laidlaw v. Sage (158 N. Y. 73, 99), and the subject of proximate cause is carefully reviewed in subsequent pages, all reaching the same general result. There can be no doubt that the plaintiff’s intestate would not have been "injured except for the act of some one by which the elevator was stopped so suddenly that it jarred the wheelbarrow from its place, causing it to fall, and whoever was responsible for that act was responsible for the natural results of His acts, and not the defendants, who were negligent only in the sense that they had failed to comply with the provisions of the Labor Law. “Although the omission of the owner to comply with the ordinance,” say the court in Koch v. Fox (supra), “ may have been a remote cause, it is manifest that the intervening negligence of the contractor was the direct and proximate cause of the injuries, and in these circumstances the owner would not be liable.” (See authorities cited at p. 295.)
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
i Hooker, J.,. concurred; Hirschberg, P. J., Bartlett , and Miller,, JJ., concurred in the resulflon the ground that the question of the. appellants’ liability should have been disposed of as one of fact and not of law.
Judgment and order reversed and new trial granted, costs to abide the events'