120 N.Y.S. 139 | N.Y. App. Div. | 1909
On the 27th of January, 1906, plaintiff was in the employ of the Otis Elevator Company, and was engaged in installing elevators in a building on Fifth avenue, between Thirty-fourth and Thirty-fifth streets, in the borough of Manhattan. Defendant had the contract for , the iron and steel construction work upon the same 'building. The building was being constructed in sections, and the portion' fronting on Fifth avenue, so far as- the iron and steel frame was concerned, had been completed up to the ninth story. On the top of this completed portion defendant, had placed a derrick, the boom of which swung over Thirty-fifth street. It was used to raise and place in position in the newer part of the building massive iron columns. Similar columns had been [Faced in the completed portion of'the building, which supported heavy girders that ran east and west, parallel with Thirty-fifth street and at right angles to Fifth avenue. From these girders lighter iron -floor beams ran in a northerly and southerly direction. These were bolted or riveted into the transverse girders. Plaintiff was at work upon a platform on the Thirty-fifth- street- side of the building, which was about on a level with the street. Underneath this was the sub cellar, about thirty-five or forty feet deep. On the day in question defendant, with the aid-of this derrick, was raising from Thirty-fifth street one of these iron columns to place it in position. When it was about-eight or nine feet higher-than the platform where plaintiff was - at work, although not directly over it, the support of the derrick gave way
Defendant proved that during the progress of this work and some time before the day of the accident its employees .had struck, that the strike was then unsettled, and that the men employed by- it on the day in question were non-union men, while the men employed by the other contractors upon the • building, several' hundred in number, were .members of various trade unions, and that some of these men were engaged in. work in close proximity to the shoring of this derrick. It also proved, and the evidence was uncontradicted, that a man with a two-pound hammer could loosen these wedges. If the wedges Were loosened the shoring timbers were liable to slip out of place. Defendant was then permitted to prove that on two previous occasions during the progress of the work and after the strike had been declared, derricks used by them upon the work had been tampered ivith. On the first occasion the guy ropes supporting the derrick had been cut in four places, and on the second occasion the strand of the rope was opened up and a knife put through the heart- of it so tliat “ just the outside of the strand held it together.”
Plaintiff urges that the admission of this evidence was -error sufficient to require a reversal of the judgment. We think not. He based his claim of negligence upon two alleged facts, first, that the derrick did fall, and, second, that it was improperly supported. The first was admitted, the second was disputed. Plaintiff contends that from the former fact, in the absence of explanation, the latter might be inferred, and that' the question of defendant’s negligence then became one for the jury. Any fact, therefore, tending to explain the cause of the fallís a relevant fact. When the question is as to the cause of a certain- occurrence, the
The judgment and order appealed from should he affirmed, with costs.
Present — Hirsohberg, P. J., Woodward, Burr, Thomas and Rich, JJ. -
Judgment and order unanimously affirmed, with costs.