Galbally v. Strauss

This appeal comes before us in a somewhat unusual form. At the trial, after the rendition of the verdict, the justice presiding ordered the exceptions to be heard in the first instance at the Appellate Division. Notwithstanding this direction the plaintiff entered judgment, and the defendants apparently acquiesced in this practice, for the case is brought into this court, not by a motion for judgment, but by cross-appeals from the judgment. No order was entered denying a motion for a new trial. We have power, therefore, only to pass upon the exceptions.

The action is for damages sustained by plaintiff while working upon premises held under lease by the defendant Simon Strauss, Incorporated. The evidence would have justified the jury in finding the following state of facts:

Simon Strauss, Incorporated, of which the individual Strauss was president, had leased two buildings which it proposed to use together, virtually as one building, for the purpose of carrying on a wholesale liquor business. To carry out this intent it was necessary to make certain alterations in the buildings, which included connecting the cellar floors, changing the plumbing in the cellars, and removing a staircase leading into the cellar from its position in the center of the reconstructed building, and re-erecting it at the extreme westerly end of the building. The lessee, Simon Strauss, Incorporated, made separate contracts for the items of work involved in these alterations. The plumbing work was contracted for with one Manns, in whose employ plaintiff was when he was injured. The carpenter work, which included the shifting and resetting of the staircase, was contracted for with a man named Johnson. Simon Strauss, the president of the lessee, frequently visited the work; but, while he appears, at times, to have given directions to the plumber’s men as to details of their work, it does not appear that he ever gave any instructions to the carpenters or interfered in any way with their work. The carpenter contractor, having cut a new well hole in the floor above the cellar, shifted the staircase, and set it up. To get it clear it was necessary to use considerable force to tear loose the nails by which it had been attached to the floor beams in its old location. They set it up in place in the new well hole, fastening it at the top by driving four nails, two on each side through the upright string pieces into the floor beams. The stairway, as thus placed, was close against the cellar wall. At the foot, along the wall ran an iron sewer pipe, and in order to set

After it had been thus erected, it constituted the only means of getting into the cellar, and was used for several days by all the workmen employed in the cellar, including plaintiff. It appeared to be solidly placed, and there was nothing apparent to indicate that it was not an entirely safe way. After the stairway had been thus placed and in use for two or three days, the plumber’s men found it necessary to run a small water pipe along and partly on top of the sewer pipe; but the string piece of the stair stood in the way. The plumber’s foreman, or principal employé, one Kramer, attempted to pull the foot of the stair to one side. He was observed and stopped by the foreman of the carpenter, Johnson, who inserted a couple of small blocks under the bottom step to raise the foot of the stair and hold it up until the water pipe could be put in place. He seems to have realized that this rendered the stair less safe and secure, because he expressly warned Kramer to let him know when he was through. His own testimony is:

“I told Kramer, ‘As soon as you are ready to get the stairs to safety, let me know when you are through.’ ”

Kramer never did let him know, and the stair remained in this condition until it fell, as plaintiff was descending, and produced the injuries for which he sues.

Of course there is a question in the case as to whether or not the stairway was properly and safely erected in the first instance; but the jury would have been justified upon the evidence in finding that it was, and that it was the blocking up which introduced an element of instability which was responsible for the fall of the stair. In either case Johnson, the carpenter contractor, or his employé created the unsafe condition, knew or should have known of the insecurity, and might well be charged with negligence either for creating the unsafe condition or for not having been vigilant in promptly remedying it.

The responsibility of the defendant Simon Strauss, Incorporated, is not so clear. The evidence would justify a finding that it furnished the stairway, and set it up, and permitted it to be used by all the workmen as a way to be used in the progress of their work. Having undertaken to furnish a way for the use of those employed upon the work, and permitted them so to use it, the lessee corporation was bound to furnish a way safe and fit for the purpose for which it was to be used. The lessee corporation stood to the employés of the several contractors in a position analogous to that in which a general contractor stands to the employés of his subcontractors, and in such a case a general contractor who furnishes a way for the use of the employés of his subcontractors is bound to furnish one which is safe, suitable, and proper. Boyle v. Robinson Co., 154 App. Div. 1 , 5, 138 N. Y. Supp.

"If an employer enters into a contract, written or verbal, with an independent contractor to do part of such employer’s work, or if such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor’s contract with the employer, such contract or subcontract shall not bar the liability of the employer for the injuries to the employees of such contractor or subcontractor, caused by any defect in the condition of the ways, works, machinery, or plant, if they are the property of the employer or are furnished by him, and if such defect arose, or had not been discovered or remedied, through the negligence of the employer, or of some person intrusted by him with the duty of seeing that they were in proper condition.”

This provision, so far as we know, has not yet been construed by any court in this state; but an identical statute has been considered and construed by the Supreme Court of Massachusetts. In Sullivan v. New Bedford Gas & Electric Co., 190 Mass. 288 , 76 N. E. 1048 , it was said:

“The effect of Rev. Laws, c. 106, § 76, is in our opinion to make certain that the intervening contract does not prevent the owners owing a duty directly to employes of the contractor.”

This, we think, is the true construction to be given to the provision quoted from our own statute. It does not enlarge the obligation of an owner circumstanced as was the lessee corporation in the case at bar, and does not purport to enlarge such obligation. It merely provides that, if an owner or general contractor assumes the obligation of furnishing safe ways and appliances, he may not shield himself from liability for his failure to carry out that obligation by showing that he has intrusted the work to an independent contractor, no matter how competent. If the independent contractor does the work negligently or improperly, his fault is attributable to the owner. To apply the statute to the present case, if Johnson, the carpenter contractor, erected and fastened the stair improperly, and the plaintiff’s injuries resulted from his default in this regard, the lessee corporation is liable for the consequences of such default, and may not escape liability by showing that it intrusted the work to Johnson under an independent contract.

If, however, the jury should be of opinion, as under the evidence it

The plaintiff’s appeal must therefore be dismissed, and the judgment in so far as appealed from by the defendants reversed, and a new trial granted, with costs to said defendants appellants to abide the event.

McLaughlin, j., concurs.

[1, 2] I concur in the reversal of this judgment on the ground that I can find no evidence to show that the defendant Strauss, either individually or as president of the defendant corporation, ever furnished this stairway as a way, work, machinery, or plant for the use of his employés or the employés of other corporations in the building. The mere fact that, after the stairway was removed by Johnson, the carpenter, and placed in position on Thursday or Friday before the accident, employés of other contractors used it going to and from the cellar does not, as I view the case, justify a finding that either of the defendants furnished this stairway as a way for the employés of other contractors to use in the performance of their work. Neither of the defendants undertook to furnish a stairway or ladder for use in the building. The stairway was not completed at the time of the accident; but the alterations were being completed, and the carpenter in carrying out his contract had changed the position of the stairs. It was not the duty of either Strauss, individually, or the corporation of which he was the president to furnish a ladder or other means of access to the cellar, and neither he

For these reasons I concur in the reversal of the judgment.

LAUGHLIN and CLARICE, JJ., concur.