Flanagan v. F. W. Carlin Const. Co.

gence from which the injury resulted pointed out. The notice failed' to give such information, and the plaintiff could not avail himself upon the trial of the benefits of the employer’s liability act. Miller v. Solvay Process Co., 109 App. Div. 135 , 95 N. Y. Supp. 1020 ; Ortolano v. Degnon Contracting Co., 120 App. Div. 59 , 104 N. Y. Supp. 1064 ; Kennedy v. N. Y. Telephone Co., 125 App. Div. 846 , 110 N. Y. Supp. 887 ; Finnigan v. N. Y. Contracting Co., 194 N. Y. 244 , 87 N. E. 424 .

The complaint, however—eliminating its averments as to the service of such notice—sets forth a common-law cause of- action, as well as one for a violation of the provisions of the labor law requiring the use of safe, suitable, and proper mechanical contrivances, “so constructed, placed and operated as to give proper protection to the life and limb' of a person” employed or engaged in performing labor in the repairing or altering of a “structure.” That statute applies to the class of work the defendant was engaged in doing (Flannigan v. Ryan, 89 App. Div. 624 , 85 N. Y. Supp. 947 ; Wingert v. Krakauer, 76 App. Div. 34 , 78 N. Y. Supp. 664 ), and operates to plaintiff’s benefit (Caddy v. Interborough Rapid Transit Co., 125 App. Div. 681 , 110 N. Y. Supp. 162 ) and it is not necessary to plead the statute specially to have it apply (Haggblad v. Brooklyn Heights R. R. Co., 117 App. Div. 838 , 102 N. Y. Supp. 1039 ; Riley v. McNulty, 115 App. Div. 650 , 100 N. Y. Supp. 985 ).

The plaintiff was an iron worker, and working as a riveter on the-Manhattan terminal of the Williamsburgh Bridge, which a.t that point is 45 or 50 feet from the ground; the space under it being open. The-terminal extended east and west, and several north and south streets-passed under it, between two of which—Pitt and Willet streets— the accident occurred. The defendant was doing the entire work of lowering the tracks crossing -the bridge and connecting them with the-subway. The bridge had five traffic zones. On the extreme south was-a roadway for teams, next to that two trolley tracks of the Brooklyn Heights Railroad Company, next two tracks for elevated trains; next two tracks over which the cars of the Metropolitan Company were-operated, and next—on the extreme north side—was another roadway for teams. The work which defendant was doing at the time of the-accident was in the second and third of these zones, and consisted of lowering the tracks of the elevated and Brooklyn Heights trolley roads. The open space below these four tracks, between Pitt and Willet streets, was used by defendant as a store yard for the material used inks work, as well as a working place for some of its workmen engaged in preparing materials for use. Witnesses testified that:

“All kinds of material, old iron, new iron, rivets, bolts, anything that we-needed for the structure, was laid in there.”

The work had been commenced at the anchorage, and continued ■ westwardiy towards the subway. At the time of the accident the gang of riveters, of which plaintiff was a member, had finished their work over this storage yard, and moved their staging and appliances some distance west of it,.after which, plaintiff went to the storage yard for rivets, and, while there, was struck on the head by a block of wood, which fell from the upper structure, directly over the place where the-

materials were kept, and where some of defendant’s employés were working on the tracks of the elevated road in the third traffic zone of the bridge. Loose pieces of wood of all descriptions, bolts, plates, angles, spikes, and similar materials, were laying on the bridge where these men were working. There was no cover or protection of any kind between the place where they were working and the storage yard under it, where plaintiff was at the time of the accident, to protect employés who worked in the yard, or who went there for materials, from injury by objects falling from the upper part of the structure, and it appeared that prior to the accident men working in the yard had seen materials fall from the upper part of the structure.

An engineer with 29 years experience testified that there was a common and general custom or practice in the city of New York, where men were at work beneath other men, whose work was carried on on a bridge or elevated structure, to protect the lower workmen by either stretching a canvas or building a temporary staging, planked over. He says the usual custom in cases of bridges or subway work was to put up a canvas that would protect the men working underneath, by forming a covering, so that anything falling from above would fall into or upon the canvas, and that this was the common custom and practice when the structure was over private property, as well as when it was over public streets; that he never saw the kind of work which defendant was doing doné when canvas was not so used. The defendant had observed this custom when its work was over public streets.

The plaintiff is entitled to the most favorable inferences reasonably deducible from the testimony; and, his complaint having been dismissed on the evidence produced by him, the testimony given by his witnesses must be assumed to be true. The jury might have found that the defendant established the store yard for the purpose of keeping material to be used on the work in the ground space directly beneath the tracks of the elevated road on which it had other employés at work; that upon the upper structure, at the place where such men were working, was loose material, including blocks of wood similar to the one which fell and struck the plaintiff; that prior to the accident workmen had seen objects fall from the upper structure into the storage yard; that defendant was aware that the work being done on the bridge created danger from falling articles; and that plaintiff, in going to the storage yard for rivets to use in his work, was using the yard in the manner in which defendant intended it should be used by its workmen. In other words, the jury would have been warranted in finding from this evidence that the storage yard was made a dangerous and unsafe place in which to work because of the manner in which the defendant was conducting the work on the bridge over it, and that it knew or should have known this fact. If it was necessary for the plaintiff to establish notice of the dangerous method it was using in the work of altering this structure, I think it was established, in view of the violation of the provisions of the labor law. Johnson v. Onondaga Paper Co., 112 App. Div. 667 , 98 N. Y. Supp. 602 .

The evidence that there were usual and customary methods in use in New York City for protecting the lower workmen upon bridges and elevated structures from injury by materials falling from higher places

where other employés were at work brings the case within .the rule that the failure of an employer to use ordinary and customary methods is of itself some evidence of negligence, requiring the submission of the question to the jury (Schmit v. Gillen, 41 App. Div. 302 , 58 N. Y. Supp. 458 ; Cosselmon v. Dunfee, 59 App. Div. 467 , 69 N. Y. Supp. 271 ); and where the master’s failure to use common and ordinary methods and appliances in his work subjects the servant to unnecessary danger there is culpable negligence (Rickhoff v. Hackman, 54 Hun, 637 , 7 N. Y. Supp. 471 ). Even if, as suggested, the negligence of a fellow servant might have put the block of wood in motion, causing it to fall, this would not relieve the defendant of its own dereliction of duty in failing to provide a safe place for- its servants to work in. Hazzard v. State, 108 App. Div. 119 , 95 N. Y. Supp. 1103 .

The evidence from which the jury would have been justified in finding that the defendant violated the labor law, in not furnishing safe, suitable, and proper contrivances, so constructed, placed, and operated as to give proper protection to the lives and limbs of its servants, also presented a question of defendant’s negligence, requiring its submission to the jury. McLaughlin v. Eidlitz, 50 App. Div. 518 , 64 N. Y. Supp. 193 ; Swenson v. Wilson & Baillie Mfg. Co., 102 App. Div. 477 , 92 N. Y. Supp. 849 ; Rooney v. Brogan Construction Co., 107 App. Div. 258 , 95 N. Y. Supp. 1 ; Marino v. Lehmaier, 173 N. Y. 530 , 66 N. E. 572 , 61 L. R. A. 811 .

The defendant’s contention that its duty was, not to furnish a safe place for its workmen, but to furnish a place reasonably safe in its natural condition, and such place becoming dangerous only as the work progressed, the defendant is not liable, is without merit. The rule applicable in this case is well stated in McGovern v. Central Vermont R. R. Co., 123 N. Y. 280 , 25 N. E. 373 , as follows:

“When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger. This is the master’s duty, and however he may choose to exercise it, whether through the supervision of a superintendent or some lower grade of employment, it still continues- his duty, and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned by its nonperformance.”

See, also, Scandell v. Columbia Construction Co., 50 App. Div. 512 , 64 N. Y. Supp. 232 .

The contention that, in addition to foot passengers, automobiles, trains, pedestrians, vehicles, and trolley cars passed continuously over plaintiff’s head while at work, and the spot where he stood when injured, is not supported by the evidence, which is that the elevated tracks had never been used and were just being laid. That no cars were being operated over them follows as a mattér of course. That plaintiff was in the space undey these tracks, and the only work that was going on over the place where he was injured was the laying, of the ties and rails of that road, which was being done entirely by men in the employ of the defendant, leaves no warranted ground for the assumption that cars, pedestrians, automobiles, and other vehicles were using the elevated railway, on the bridge from which the block fell, for

traveling purposes, or that travel upon the extreme outer traffic zones of the bridge was the cause of the block of wood falling from the elevated road into the storage yard. The case is not, therefore, as contended, like those in which a recovery has been denied because of large numbers of workmen of different contractors being at work on the building at the time the object producing the injury fell therefrom, and it was not shown which contractor’s employés were guilty of the negligence causing the accident, and the cases cited have no application.

In the case at bar the answer admits the allegation of the complaint that the defendant was contractor for and engaged in performing the structural work at the Manhattan terminal of the Williamsburgh Bridge in the borough of Manhattan, city of New York, and the evidence shows that no work was being done on the bridge terminal over the place where plaintiff was injured, at the time of the accident, except by defendant’s servants, and there was no travel of any kind over or upon that portion of the bridge from which the block of wood that injured plaintiff fell. In this connection, see Zettel v. Taylor, 128 App. Div. 251 , 112 N. Y. Supp. 639 .

It was error upon the part of the learned trial justice to take the case from the jury. The questions as to defendant's negligence, the contributory negligence of plaintiff, and of his assumption of the risk of the employment, were for them to decide.

Judgment reversed, and a new trial granted; costs to abide the event. All concur; MILLER, J., in result.