49 N.Y.S. 1077 | N.Y. App. Div. | 1898
The cause of action alleged in the complaint arose out of the same accident involved in the case of Wittenberg v. Friederich (8 App. Div. 433, 439).
In that action the plaintiff was nonsuited as to the defendants Friederich, and the jury found a verdict against Seitz for $4,000. Upon appeal by the plaintiff from the judgment, entered upon the non-
The plaintiff Gardner was an employee of the Rochester Bridge and Iron Works Company, whose duty it was to furnish the iron materials required in the construction of the building, and was injured while engaged in the performance of his duties on the top floor at the time of the accident.
In the former action of Wittenberg the court remarked : “The difficulty in this case, which has provoked much discussion and con
This case would appear to come within the general rule that where men of ordinary prudence and discretion, upon consideration
The counsel for -the respective parties have .carefully reviewed ■and commented upon the evidence, called attention to the salient •points and drawn the deductions and inferences most favorable to their respective views of the controversy. We deem it unnecessary to enter into a full discussion of the evidence, or to present the arguments and contentions suggested thereby, as we are satisfied that the court below would not .’have been justified in nonsuiting the .plaintiff or in directing a -verdict for.,the defendants Eriederieh.. Whenever there is any doubt, as to the-facts, it is the province of the jury to determine not only what they are, but what are the proper inferences to be drawn from them. Whether the facts be disputed or undisputed, if different minds may honestly, draw different conclusions from them, the case should prop-. erly be left; to the jury. But, of course, there must be .evidence upon which they might reasonably and properly conclude that there was negligence. The cases arising often present such a variety of circumstances that it is eminently proper that the degree of care and circumspection demanded of persons in various situations should be determined by the triers of fact. “It is this class of cases, and those akin to it,, that the law commits 'to the decision of a jury. Twelve men of the average of the1 community, comprising men of ■education and ■ men of little education, .men of learning and men whose learning consists only in what they have themselves seen and ■heard —- the merchant,, the mechanic, the farmer, the laborer —■ these sit together, consult, apply their separate experience of the affairs of. life -to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is, the great effort of the law to obtain.”' (17 Wall. 664.) It would be a rather difficult undertaking for this court to assume and determine,' as a matter of law* and in opposition to the finding of the. jury, that the defendant Seitz, and not the Eriederichs, is the person who should have been held
The court was justified in submitting the questions which it did submit to the jury, and the verdict rendered should be sustained, unless there were errors committed by the court in its rulings upon the trial.
It is claimed in behalf of the appellants Friederich that the learned judge at the trial committed various errors in his rulings upon questions of the admission and rejection of evidence, and in his refusals to charge as requested, and we will now proceed to an examination of such alleged errors.
The plaintiff’s witness Howard, who had described in detail the situation as it existed immediately after the accident, was asked on cross-examination by the counsel for the defendants Friederich this: “ Q. The appearance then indicated, did it not, that the floor in falling had pushed the wall outward ? ” Mr. Harris objected in behalf of the defendant Seitz, as calling for a conclusion. The objection was sustained, and the defendants Friederich excepted. The Court: “ He may state what the facts were.” The witness then proceeded to make the statement in detail as indicated by the court. The plaintiff did not make the objection, but it was made by the defendant Seitz, and the court ruled that the witness might state what the facts were, instead of stating a mere opinion. The appellants had the benefit of all the facts pertaining to the appearance and condition of the building as it existed after the accident, so they were not in any manner prejudiced by the refusal of the court to allow the witness to state the conclusion at which he had arrived, and its exclusion does not present error calling for a reversal of the judgment.
There was no prejudicial error committed by the judge at the trial in receiving evidence respecting the post under .the beam, and the adequacy of the support of the beam. The evidence was clearly
One of the plaintiff’s'witnesses was asked what kind of 'material was put into the south wall; this was objected to. The objection was overruled and' an exception taken by appellants, who claimed that this was prejudicial. As the charge Of negligence is not predicated upon the construction of the east wall alone, it would seem that this exception might be disregarded. •. If the floor was. unduly loaded, the Friederichs might be held responsible therefor.
The plaintiff was asked if there was any reason why the' truss could not have been completed the day of the accident! This was objected to by the Friederichs and an exception taken to the overruling of such objection.. The answer was, not that he could see. Apparently, this answer is of no particular consequence.;. The appellants argue that they had nothing to do with the construction of the truss. There is evidence tending to show that the truss could have been completed before the walls were finished; that it was the appellants’ duty to furnish iron' beams, etc., for the tiébeams, without which the latter could not have been completed; that they were responsible for the condition of the. floor, in so far as they made it dangerous by overloading it with bricks and mortar. The answer of the witness did not throw the responsibility upon the appellants for failure to complete the truss without the other evidence. '
The court did not err in excluding appéllants’ offer to show a custom to use the floor as standing room for men and materials. The appellants claimed that they had a right to show that they were using the floor in the usual and ordinary way in doing their part of the work, and thus to establish ordinary care. But this offer did not go to prove that other contractors would, under the same circumstances, do the same thing in the same way. Such evidence would not establish that, under all the circumstances existing in the case, it was a prudent thing to do. It also appears that one of the appellants testified that Seitz knew he would use the floor to put men and material on; “ that is the custom; I have built a good many buildings with Seitz, and that is the way we always do.” So
Of course, it was clearly evident to the jury that the floor would necessarily be more or less used by the workmen, and that that was to be expected; but the question was, whether Seitz expected it would be loaded with a large quantity of brick and material; and in view of the fact that the Friedericlis knew that Seitz had not and could not then complete his work in respect to making the floor perfectly safe, custom cannot relieve appellants from having loaded the floor as though it had been entirely completed. And it should be further observed that, as to the appellants’ right to use this floor, the court charged, at their request, as favorably to them as they were were entitled, and no exception was taken to such charge. The appellants, therefore, were not prejudiced by the ruling of. the court excluding their offer to show custom, and we are of the opinion there, was no error presented by such ruling.
One Madden, the architect’s assistant, was called as a witness by defendant Seitz and asked this: “ Q. What took place between you and Mr. Seitz on the subject of making an alteration in regard to that plate? The defendants Friederich objected. The objection was overruled and exception taken. A. I cannot recall the circumstances, but I know .why it was done. That is, that it would mar the ceiling; I agreed to have it cut in.” A similar question was also put to the defendant Seitz, and he Was allowed to answer the same over objection and exception by the defendants Friederich.
Since these questions were not asked by the plaintiff, how can they affect the verdict ? The purpose of the questions put by Seitz •was to relieve himself from responsibility, and it would seem to be proper, as between him and the Friedericlis, to show how the mortise came to be cut. Seitz had a right to this evidence in support of his defense against .the plaintiff’s claim, notwithstanding the Friedericlis’ objection. So far as this exception is concerned, it is a matter between the co-defendants alone. The circumstances under which the defendant Seitz cut this mortise would appear to be material and proper evidence. It was proper for him to give such evidence as tended to relieve him from the charge of negligence. The Friedericlis contend that they were not responsible for cutting the mortise; that if it was improper to cut it, the assent of an archi
Upon the trial the counsel for -defendant Seitz framed a hypothetical question upon the evidence, shelving a state of facts as claimed by Seitz to have existed, and his expert witness Kuiehling was asked to say, under such a state of facts, Avhich broke and fell first, the beam or the wall ? This was objected to by the defendants Friederich, and the objection was overruled and an exception taken by them.- Previous to the asking of this hypothetical question, the appellants’ own witness, Architect Warner, introduced the subject by giving his opinion “ from the appearance of things,” as lie observed them, and testifying from that, that in his opinion the tiebeam broke first. And afterwards the appellants put the identical hypothetical question, to which they make objection, to their witness Brown, and Brown answered the samé contrary to the .answer of the witness Kuichling. I cannot perceive that there is any sound reason Avhy the exception, assuming it to be technically correct, should warrant a reversal. The'object of the-hypothetical question Avas to relieve Seitz from liability and throw the responsibility upon the appellants. The tendency of it was to relieve Seitz from liability to the plaintiff, and the plaintiff made no objection to it and does not complain of it. This again raises the interesting question, how far will the admission of incompetent evidence, as between the co-defendants, jointly and severally liable in'tort, justify a, reversal of a verdict rendered in favor of the plaintiff, who did not put the question, or. make any objection to it ? If co-defendants so situated' as these should agree together to inject into a case incompetent evidence, and should succeed in having the same admitted over objection and exception taken by one of the defendants, a plaintiff who had obtained a righteous verdict would be pre
In response to a request made by the plaintiff, the court charged that it. was Seitz’s duty to put up an adequate support for the purpose of holding the beam to enable him to construct the framework according to the conditions of the contract; but that he was not required to put up any supports unless he made the contract with Friederich ■& Sons that he would do so for the pxirp>ose of holdmg whatever brick might be put on the floor. Under the evidence in the case it is so clearly apparent that this charge was not erroneous in that particular that it needs no discussion.
Plaintiff requested the court to charge that Seitz, knowing that the floor was to be used by the Friederichs as a place for their men and materials, was negligent, unless lie used reasonable care and properly supported it for that use. In response the court said: “ No, gentlemen, umder the contract he did not owe any duty to prop up this floor so as to enable them to lay the brick wall. He was bound to exercise reasonable prudence and care in executing the work that he was required to do under the contract; and, if the accident occurred by his failure to exercise reasonable care and prudence, then he might be liable:” This was excepted to by the appellants. The plaintiff asked this instruction for himself and not in behalf of the Friederichs. It is evident that the court had reference to the placing of an unreasonable quantity of bricks and mortar ujion the floor. It was properly left to the jury to determine whether, under all the circumstances, Seitz used due care. The request made just jneceding the one under consideration related .to supports and not to the tiebeam. The court had also charged that the Friederichs had a right to use the floor and were not negligent in putting bricks and mortar there. Taken in connection with the balance of the charge, I believe there was no error committed by the court in the portion of the charge thus made.
The plaintiff asked the court to instruct the jury that Seitz did not perform his full duty by merely properly supporting the floor and joists; but that, if he knew that the Friederichs were to use the floor for their men and materials, and he allowed them to use it, he was bound to properly support it for the men and materials. In response, the court, after alluding to the duty of Seitz toward his own servants^ said: “ But, so far as the Friederichs were concerned and their servants, Seitz had no Control over them. He could not dictate to Friederichs that they could not take any brick up on the attic floor.” The Friederichs excepted to the charge so made, but took no exception to the omission or refusal to charge the proposition requested. The plaintiff was asking instructions in respect 'of Seitz’s duty towards himself, and not in behalf of the Friederichs, nor in regard to Seitz’s obligations towards them. The remarks of the court excepted to were proper. The court did not expressly refuse the request, and no exception was taken to that.
It is perfectly apparent from other portions of the charge, or instructions given by the court, that the court had reference to the placing of a large or unusual quantity of bricks upon the floor while it was left in its then incomplete condition, and, taken in connection with the entire charge, the portion of the charge above excepted to presents no error.
The defendants Friederich excepted to the charge, in substance, that the jury was to say whether the Friederichs were negligent in building the walls; also whether the floor was overloaded.
There was evidence that there was a large quantity of bricks and mortar upon the floor when the accident occurred, and whether that was a negligent act and a contributing cause of the accident, was for the jury. The construction of the wall might have been proper and safe and no accident happened, had it not been for the bricks placed upon the uncompleted floor, and if there had been no rain and the walls had not been “ green,” and the mortar had had time to cohere. All of the evidence of this character was proper upon the subject of the negligence of these defendants, and was for the jury.
The court was asked to charge that, if the jury was unable to determine whether the accident was caused by the breaking of the beam or falling of the wall, then there could be no recovery against the Friederichs. The court, in response, said: “ I decline to Vary my charge upon that point.” The appellants contend that this matter was not even alluded to in the charge. If that be true, then it was the duty of the counsel to call the court’s attention to the omission. The appellants were charged with negligence in respect to placing too heavy a weight upon the floor, in the condition in which it was left, and there was some evidence in respect to the wall.
The court was requested to charge that, if the jury concluded that there was no overloading of the floor, in case it was properly constructed, “ then there can be no recovery against the Friederichs, if they were not negligent in constructing the wall. The
The court had charged repeatedly, and in general terms, in respect; to the relative duties of the co-defendants toward each other, in . respect to the matter of the- tiebeams and their supports, and as to-the placing of materials thereon, and the ruling of the court presents no error.
In response to a request to charge that the Eriederichs were warranted in assuming that Seitz would support the tiebeams, so as to-mate them safe for the usual work upon the floor above, the. court, said: “I so charge as to the usual work, but it is for the jury to-determine whether this, work was the usual work, or whether the floor was overloaded.” And again, “ There is no question but what. . he had a right to usé the floor, but, gentlemen, you must determine whether he used it as a prudent, discreet man would have used it, Drought to have used it under the circumstances, -and you may take into-consideration the condition the floor was in at the time.” The court, refused to charge that there was no evidence that the wall was overloaded at the moment when the accident happened. The charge as-made, and the -refusal to charge as requested, present- no error: The-court was justified, under the evidence given upon this trial, to submit the question of the negligence of the. defendants to the jury. Such question was fully and fairly submitted by the court to the-jury, and that body has -passed upon the question and found that, under the evidence in this case, these appellants were guilty of the negligence which caused the injury to the plaintiff.
The evidence is sufficient to justify and uphold such a verdict.
The order should be affirmed, with costs.
All concurred.
Order affirmed, with costs.