77 N.Y.S. 681 | N.Y. App. Div. | 1902
Lead Opinion
By this action the plaintiff seeks, in her representative capacity, to recover damages against the defendant for the claimed negligence of the latter in causing the death of plaintiff’s intestate. It appears from the testimony that the deceased was employed by the defendant about the construction of a building on the northwest corner of Wall and Water streets, in the borough of Manhattan. In the center of this building was placed a derrick, used in hoisting the iron work which entered into its construction. Deceased was one of the iron workers, and on the day when the accident happened
.The derrick in question had a mast thirty-five feet in height and a movable boom fifty-five feet long. Attached( to the mast was a stiff leg some forty-six feet in length, which came down thirty feet back of the mast. From the top of the mast ran guys in different directions, to support the same. Just how many and where they ran does not clearly appear from the evidence in the case. Taking the testimony as a w-hole it is quite likely that at first there were five or six of these guys, and later four as one witness, and practically the only one, describes them as running in four directions to different, corners of the building. The length of the boom made it impossible .to move the samé past these guys, and to avoid this difficulty the guys were provided with block and tackle which could be easily removed and the boom .allowed to swing by. The boom itself was moved up and down "by power from a stationary engine, and was swung around from right to left and left to right by “ tag-lines.” These were under the control of two men, one on each side, whose duty, among other things, was to stop this boom when it had swung beyond a detached guy rope so that it could be replaced. On the day of the accident the deceased had been working upon the second tier of the building for a considerable time, and the boom had' been swnng to the west when he was ordered to" get upon it. 'At that timé all the guys on that side of the derrick had been removed to allow this boom to swing by, and.there was only one guy supporting the entire structure, together with the stiff leg. When the boom had been raised for the deceased and Pihlgardt to get on, it was then swung around; the weight having nothing to sustain it, caused the derrick to fall. It appears from the testimony of at least three of the witnesses, the engineer, an iron worker and -an expert, that a derrick of this sort should be supplied with two
One of the iron workers on the building says that the usual method of construction of a derrick used for work of this character is to have two stiff legs. Olson, an expert on the strength and construction of derricks, testified that a derrick such as the evidence showed this one to be, would not be well constructed to perform work of this character and that “ the proper construction would have been another stiff leg.” This witness not only gave his opinion as to what would constitute proper construction of a derrick used as this one was used, but he also described the method and manner of use, the character of different constructions, the office which the supports played, whether guys or stiff legs, the points at which the strain would come and what construction would be proper in such a case. This evidence was, therefore, competent without regard to whether its inherent character authorized the expression of an opinion by the expert as to whether it was good construction or not or whether it fell within the class which authorized descriptive, testimony only, leaving it for the jury to draw conclusions therefrom. If we assume that it did not fall within the class of cases
It cannot be doubted but that it became the duty of the master to furnish reasonably suitable, safe and adequate machinery and appliances for the performance of the work. Such duty is an absolute one which may no.t be delegated by the master to another, and in the performance of such obligation the master cannot exonerate himself from liability for the intervening negligence of a servant' to whom its discharge has been committed. (Oties v. Cowles E. S. & A. Co., 26 N. Y. St. Repr. 869; affd. on appeal, 130 N. Y. 639.) This being the measure of the defendant’s obligation imposed by law, if he failed therein and injury resulted on account of such failure* then in the absence of contributory negligence or of a risk assumed by the deceased in and about the' performance of the work, liability would attach and the jury would be authorized to find negligence and award damages. ' In view of the testimony that the construction of the derrick was improper for the purpose for which it was used, it is not permissible as matter of law to say that the method employed to support the derrick was the -usual and' proper one in this' kind of work. Oh the contrary, the evidence given by the plaintiff tended to show the exact reverse, and if the jury had found such to be the fact and there was no intervening negligence or risk assumed, the court was not authorized to dismiss the complaint, but under well-settled rules was required to submit the question thus presented for determination tó the jury. Aside, however, from this question, we think the evidence was of such a character as-to authorize the jury to say that the construction of this derrick under the circumstances of this case was in violation of the pro-'
These are all the questions which this case presents, and as we conclude that the case should have been submitted to the jury, the
Patterson, O’Brien and Laughlin, JJ., concurred; McLaugh-' lin, . J., dissented.
Dissenting Opinion
(dissenting.)
I am unable to concur in the opinion of Mr. Justice Hatch. The fall of the derrick was not due to any fault or neglect of the defendant. It is not claimed that the derrick was defective or out of repair, and there is no basis whatever for the assertion that it. was not properly constructed considering the work that was being done. The cause of the accident is clear. The mast of the derrick was sustained by guy ropes which were so arranged that they - Could be removed from time to time as the work progressed and occasion required. When they were removed it was made the duty of one of the intestate’s fellow-workmen to replace them before the boom of the derrick was again moved. A “ tag line ” was also attached to the boom, which line was held by another fellow-workman by the name of Hanson, whose duty it was not to permit the boom to be moved until the guy ropes had been put in place. Each of these fellow-workmen failed to perform the work assigned to him. Hanson let go of the '‘ tag line,” and by reason thereof the boom swung around and the other fellow-workman having neglected to put the guy ropes in position, the derrick collapsed.
How the defendant can be held liable, under such circumstances,, I am unable to conceive., The accident was directly due to the negligence of a coservant and nothing else.
Nor do I think that section 18 of the Labor Law (Laws of 1897, Chap. 415), upon the facts here presented, has any application whatever.
The exceptions of the plaintiff should be' overruled and judgment entered dismissing the complaint.
Judgment reversed, new trial ordered, costs to appellant to abide event.