95 N.Y.S. 1 | N.Y. App. Div. | 1905
The defendant, as owner, was engaged in'the construction of a ten-story building through the instrumentality of several different independent contractors, to some of whom it furnished materials. As the work progressed' a hoisting machine Was installed in the building by a hoisting machine company, and was used by the different contractors to hoist materials, each paying the hoisting machine company by the hour or day for the use of the machine. The openings in the different floors through which .this machine was operated were entirely unguarded, in violation of section 20 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192). An officer of the defendant was frequently on the premises inspecting the progress of the work, and the defendant employed a watchman who was required among other things to observe the manner in which the work was being done by contractors and report to the defendant; he used the hoisting apparatus- to hoist coal for the defendant from the basement to the different floors to heat the building. Plaintiff’s intestate, a servant of one of the defendant’s contractors, had been employed on the building about two weeks, at first in the basement mixing plaster and putting it on the hoisting machine to be carried to the different floors, and later lighting the fires in stoves on different floors for the purpose of drying the plastering. This had at first been attended to by a servant of the defendant, but for a reason immaterial to .the question involved an officer of the defendant had requested said contractor .to have this
At the close of the entire evidence the court directed a verdict for the defendant upon the ground that the deceased had assumed the risk, and upon the further ground that said section 20 of the Labor Law did not impose any duty on the defendant for breach of which an action could be maintained by the servant of an independent contractor. Although in form the court directed a verdict, such direction can be sustained, if at all, only as a nonsuit, and upon this appeal we must examine the record to ascertain whether upon the view most favorable to the plaintiff there was any evidence requiring the submission of the case to the jury.
The learned justice thought that upon the question of contributory negligence the evidence presented a question of fact for the jury. In this view we concur, and think that the question of assumption of risk was also for the jury. Upon this question the defendant had the affirmative. (Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459.) There was no affirmative evidence that the deceased knew of the unguarded condition of the elevator openings, and we do not think such knowledge could be inferred as matter of law from the mere fact that for a few days he had been lighting fires on the different floors; certainly that occupation did not necessarily call his attention to the absence of guards about these openings. He knew, of course, that the hoisting apparatus was there,
This brings us to the serious question in this case, which requires the construction of said section 20 of the Labor Law, which, so far as applicable, provides: “ If elevating machines or hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used in Such construction, the contractors or owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by a barrier at least eight feet in height.” It is insisted by the respondent, first, that the' defendant owed no duty to the deceased at common law and that the statute imposing the duty having also provided a method of enforcement by section 21 (added by Laws of 1899, chap. 192), that method is exclusive and that no cause of action was created by the act; and, second, that the words “ contractors or owners” should be so construed as to impose the duty on the one having the particular work in charge, and that where the building is erected wholly by a contractor or contractors over whom the owner has no supervision except to see that they perform the contract the obligation rests, on the contractors, but not On the owners. As to the first proposition, it may be granted that the defendant owed ho duty to the deceased at common law. Section 21 of the statute does provide that the Factory Inspector shall enforce the provisions of article 1 of said statute, which contains these sections, in the manner pointed out, and if the rule invoked by the defendant is applicable, that “ where a statute creates a new offence by making that unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced” (People v. Stevens, 13 Wénd. 341), the action cannot be maintained. We do not think, however, that that rule is applicable. It cannot be doubted that
As to the second proposition, it is very clear that the statute was intended to insure so far as it could the erection of guards or barriers for the' protection of persons employed, and it seems to me
In the case at bar there were as many different contractors as there were kinds of work,, and, without passing upon the question as applied to any state of facts except those shown to exist in this case, we think that a duty was imposed by the statute upon the defendant for the benefit of plaintiff’s intestate, and that as the breach of that duty was a proximate cause of the decedent’s death,, the evidence presented a question for the jury, and that a nonsuit was error! ' '
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Hirschberg, P. J., Bartlett, Jenks and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.