31 N.Y.S. 618 | N.Y. Sup. Ct. | 1894
This is an appeal by the plaintiff from a judgment entered upon a dismissal of the complaint at the circuit. The action was brought for the recovery of damages for negligence, and the material facts in the case are these: The plaintiff was at work in the cellar of a house which was in course of construction in Brooklyn. The building was to be about 100 feet square, and at the time of the accident the brick walls were above the level of the sidewalk. The beams for the first story had been set in place on the east side, and upon the beams near the rear of the building there was a plat
“I was on the premises at the time the accident happened. I was in this open space in the cellar, shoveling sand at the time. I mean that space in the rear of the cellar which was not covered by beams. My duty there was filling sand; filling these barrels for Reilly and other men, who were carting them away. The barrels were being carted away at that time. Where I stood there was nothing above my head. I saw the men of the Atlas Iron Construction Co. moving this derrick. They were moving it from the east. They were facing it around to the west of the building then. I could not say whether they moved it with bars, or shoved it with their shoulders. They were pushing it. Any way, I saw them come past the corner of the pile of bricks. I was looking at them. The corner next to Smith & Gray’s towards the rear of the building. That would be the southeast corner of the pile of bricks. When the men were moving the derrick past the southeast corner of the pile of bricks, the bricks fell down. They let the derrick-stand there till the man was picked up. Just before the bricks fell down, they were moving the derrick. I could not say whether the derrick hit the brick or not, but it was up close to it, against the brick; I could not say touching them. * * * These men were moving the derrick up to the time the brick fell.”
On Ms cross-examination the witness said:
“They stopped the derrick as soon as the brick commenced to fall. They did not stop the derrick till the brick commenced to fall. This open space came," to> the best of my knowledge, five or six feet to the pile of brick. This derrick, from one upright to the other, may be six or seven feet It was moving on rollers. They have two wheels under it”
A number of brick fell upon the plaintiff, and injured him very seriously. There is no question respecting the negligence of fellow servants involved in tMs case, as the plaintiff and the men who moved the derrick were servants of different masters, and therefore were not coemployes. Sanford v. Oil Co., 118 N. Y. 571, 24 N. E. 313; Sullivan v. Railroad Co., 44 Hun, 304. Neither can there be any serious question respecting the negligence of the men who moved the derrick if they caused it to collide with the brick, and precipitate them into the cellar. They knew or should have observed that the plaintiff and others were at work in the story below. The open spaces were sufficiently large to enable them to see men