| N.Y. App. Div. | Jul 1, 1898
Lead Opinion
This action was brought by the plaintiff, as administrator, of George Lipp, deceased, against the corporation of Otis Brothers & Co., appellant, and the firm of' Gillis & Geoghegan and one Benjamin Altman, to recover damages resulting from the death of the decedent, alleged. to have been caused by the negligence of the
In discussing the questions presented upon this appeal, the pror priety'of the ruling of the court in dismissing the complaint as toGillis & Geoghegan and Altman cannot be considered unless the evidence introduced upon the trial shows that the accident arose solely from the negligence of those defendants, or one of them. It is a-familiar principle that where several parties participate in a w'rong, or where injury results , from negligence in which several parties, participate, the person injured may maintain his action against either of the wrongdoers, .or all. It, therefore, follows that,, although the-defendants Gillis & Geoghegan and the defendant: Altman, may have contributed by their action to the happening of the accident,, yet, iff the-, negligent participation of the defendant appellant was-necessary to accomplish the result, it is liable, even though the other wrongdoers should not he. pursued, or though, the complaint as to-them .should be dismissed. (Barretts v. Third Ave. R. R. Co., 45 N.Y. 628" court="NY" date_filed="1871-06-06" href="https://app.midpage.ai/document/barrett-v--the-third-avenue-rr-co-3598757?utm_source=webapp" opinion_id="3598757">45 N. Y. 628.)
It appeared from the evidence that the defendant Altman, during-the summer of 1896> was the owner of, and engaged in constructing,, a new building on Eighteenth and nineteenth streets as an extension to his previously ’ existing store on the westerly side of Sixth avenue-in the city of New .York. For that purpose he made a contract with the defendants: Gillis & Geoghegan to provide the steam fitting,, boilers, pumps, etc., which might be required in said building as per certain specifications. These specifications included the exhaust-pipes, which will' be hereinafter referred to. The defendant .Altman made another contract'with the defendant Otis Brothers & -Go-to.-furnish and erect for use'in said building ten hydraulic passenger elevators and to extend the rise of two other elevators and to-furnish and erect, certain hydraulic dumb waiters according, to specifications set out in the case. These specifications required the con struction of certain pumps necessary for the operation of the elevators; but the -steám connections with the primps were to be made by the owner of the - building, and this work was included in the contract between him and Gillis & Geoghegan. The defendant
Upon the day of the accident Gillis & Geoghegan had carried the fourteen-inch exhaust pipe to the roof, and then it had been carried a short distance in a horizontal direction, but no exhaust head had been yet put on. The work had so far progressed that ' the elevators had been in use for a considerable period of time, steam being supplied from the boilers which had been put in by Gilis ■ & Geoghegan, and the exhaust carried from the elevator pumps, by the exhaust pipe constructed by Gillis & Geoghegan. Although the elevators had been in operation for some time, the appellants, Otis Brothers & Co., were still in charge of these ele- ■ vators and the pumps which operated the same, and had not turned over the work to the defendant Altman. These elevator ptimps were arranged so that they would run automatically, and they had been in use so that some of them at least ran all night.
A man named William Jurgensen was in. charge of the work which Otis Brothers were doing in the construction of these elevators and pumps in this building. Upon the morning of the 11th of August, 1896, the attention of Jurgensen was called by one
-Jurgensen further testified that there were certain drip valves attached to the exhaust-pipe, which allowed the condensation from the steam in the exhaust pipe to pass away, and that he did not inquire or ascertain or observe whether the drip valves were open that morning. In apother place, however, he testified that he examined the drip pipes upon the pump, but that he did not examine those on the exhaust pipe.
Cullen, when he was examined, stated that he examined all the drip valves at the time the steam was turned on, and that they were open. Jurgensen was aware of the incomplete condition of the exhaust pipe upon the roof; he was also aware that workmen were engaged upon the roof. In about half an hour after this valve had been opened and the steam turned upon this pump, a large quantity of boiling water and steam were thrown out from this fourteen-inch exhaust pipe upon the roof, over the front of the building into the street, and the deceased, who was working upon the stonework in front of the building,. was scalded to death.
The evidence tends to establish that, during the night-, there must have collected a large quantity of condensed steam in some part of. this exhaust pipe, and that it was thrown out when the steam let into the exhaust from the pump had acquired sufficient power to force the water out of- the top of the fourteen-inch. exhaust pipe, thus causing the accident. The evidence further tended to show that, with the exhaust drip valves open, there was no possibility of the collection of such a body of water in the exhaust pipe; and, also, that it would be negligence, where a steam plant was'in opera
The evidence further tended to show that, if such drip valves were shut, the water would not be discharged from the exhaust immediately upon the opening of these valves, but that it would require some lapse of time after the opening of the valves to allow the water to escape. '
How, it is clear, upon this condition of the evidence, that, if Jurgen sen turned on this steam, paying no attention as to whether the drip valves were open or not, being aware that a small amount of steam had been escaping through the steam valve all night, and that if the drip valves were closed it might have condensed and lain in the exhaust pipe, he knew that the inevitable result would be to force this condensation out of the top of the exhaust pipe and would necessarily endanger every person working in its vicinity. Such an act upon his part would be clearly negligence in the management of this machinery of which he was in charge as the representative of the appellant defendant.
It is undoubtedly true that there was evidence from which the jury might have found that these drip valves were open, and that no condensation should have occurred in the pipe, the positive evidence being that, had the drip valves been open, such condensation would not have remained in the pipes and could not have been blown out in the manner in which it was done on turning steam upon the pump.. There was also evidence from which the jury might, from the fact that this condensation was blown out of the exhaust after the steam had been turned on the pump, have found that the drip valves connected with the exhaust had not been open for any appreciable length of time before the turning on of the steam, and that the accident happened because of the negligence of Jurgensen in turning on the steam without paying attention to the drip valves.
Upon this state of the proof it was for the jury to determine whether the evidence that these' drip valves had been open during the night was true or not.
It is urged upon the part of the appellant that the action of Grillis & G-eoghegan in allowing this steam plant to be used without the
' It is also claimed that error was committed in the admission of evidence in regard to the family relations of the deceased and the plaintiff. It appears that the deceased was in the habit of giving all his earnings to his father, who gave him a small amount for his own expenses and used the balance in support of his (plaintiff’s) family. In this state of the case it was entirely proper for the plaintiff to show what use he had been accustomed to make of the wages' which he had received from the deceased and how necessai-y it was for the support of those whose welfare he, had been accustomed to look after.
Upon the whole case, therefore, there seems to have been no error committed prejudicial to the appellant, and the judgment and order should be affirmed,'with costs.
Patterson, O’Brien and McLaughlin, JJ., concurred; Ingraham, J.,- dissented.
Dissenting Opinion
The- accident which resulted in the death of the plaintiff’s .intestate was caused by a discharge of hot water from, an exhaust pipe upon the roof of a building in course of construction. Tlié ground upon which the learned court below refused to dismiss the complaint as to the defendant company was that there was evidence that the said defendant’s foreman was negligent in turning the steam on to the pumps which furnished the motive power for the elev_ators which were in charge of the defendant company. The foreman, who was called as a witness for the plaintiff, testified that it would, be an act of negligence to turn on this, steam without having first examined to see whether the drips connected with the pumps were open, so that when the steam was turned on there would be no accumulation of water in the pumps or the exhaust pipes. But the same witness testified, as did another witness called by the plaintiff,
It may be surmised that if the drips had been closed, and if water
I think, therefore, that the finding of the jury that the defendant company’s foreman did increase the pressure of steam, without ■examining the valves to see whether the drips from the pumps were open or not, was unsupported by the evidence, and .for that reason the judgment should be reversed.
Judgment affirmed, with costs.