41 A.D.2d 747 | N.Y. App. Div. | 1973
Judgment of the Supreme Court, Kings County, entered November 29, 1971, reversed, on the law, without costs, and complaint dismissed. The findings of fact below are affirmed. Plaintiffs brought this action against the defendant lumber supply company to recover damages, on the theories of breach of warranty and negligence, for personal injuries sustained when a scaffolding plank broke under their weight and caused them to fall. At the close of the entire case at a separate trial on the issue of liability, the trial court dismissed the negligence causes of action and reserved decision on defendant’s motion to dismiss the causes of action for breach of warranty. The jury found for plaintiffs on the theory of breach of warranty and at the subsequent trial on the issue of damages a different jury awarded them substantial damages. John Valentine, the job superintendent of Julius Nasso Concrete Company, plaintiffs’ employer, testified that on January 27, 1970 he ordered a quantity of lumber from defendant by telephone, including 200 pieces of 2 by 9 scaffold planking, and that he specifically asked for scaffold planking. He had 20 years’ experience in the trade and had dealt with defendant for 15 or 16 years; this was the normal way he gave an order and was the standard procedure for ordering. He further testified that scaffold planking was a standard item 13 feet long, suitable for scaffolding, and should be number one grade &emdash; free from any imperfections that would affect the quality of the material. Defendant’s vice-president, who received the telephone order from Valentine, testified that the latter specifically asked for rough spruce planking without saying which of two available grades he wanted. This was a repeat of many orders he had received from Valentine for other jobs during the previous two or three months and Valentine did not mention scaffold planking or say what he was going to use it for. When Valentine gave him the order he wrote it down in an order book as it was given to him. This notation was received in evidence and reads “2x9 Spr Rgh 200/13 ”, substantially as appears in the invoice. The trade custom and usage is to sell rough spruce as is; and defendant, which buys its lumber from a mill, does not cut or grade it in any way and does not inspect it for quality upon delivery to it. The defendant lumber yard delivered the lumber and one of Nasso’s foremen checked it for quantity, not quality, and signed a receipt for it. Following the delivery, Nasso’s employees branded the firm name on both edges of the planking (it was two inches thick), about a foot from one end, and then stacked it in a pile. At that time only the edges of the plank were visible. Nasso’s foreman ordered planks to be brought from the first floor of the building under construction down to the C-3 level and placed side by side across steel beams. Two men took planks from the pile and passed them down, floor by floor. About five or six planks were then laid side by side over an opening, about an inch or so apart, one end of each plank resting on a concrete platform and the other on a steel beam which it overhung by a foot. Plaintiffs stepped on the scaffold at about the same time and a few seconds later the middle plank cracked, causing them to fall some 25 feet to the foundation below. After the accident, plaintiff Velez looked over and saw that the broken plank was rotted. The