Opinion
April, 1905.
I.R. Oeland [ Phillip A. Brennan with him on the brief], for the appellants.
Samuel Cohen, for the respondent.
The plaintiff was at plumbing work on the third floor of a building under construction. The defendants were the contractors for the iron work therein. They had set up vertical iron bars from floor to ceiling in front of the open elevator shaft, which were called channel bars, and which were designed to hold the fire bricks making the "final wall" of the shaft. At the time of the accident a scaffold six feet above the floor, laid upon wooden supports called horses, extended from the wall twenty feet across the room, so close to the elevator shaft as to leave but a narrow space. The plaintiff testifies that the space was about ten inches wide — one "could hardly get through that." His witness Raymond testifies that the space was ten or twelve inches, so that a man "could barely squeeze through if he was not too large." The plaintiff sought passage from one end of the building to the other. He attempted to "squeeze through" this space, and in so doing took hold of the iron bar so that the bar "went out" and he fell into the open elevator shaft. The said witness Raymond testifies: "Well, as the horse was close to the uprights, the channel irons or T-irons, whichever they were I don't recollect, but the horse was standing too close for a man to walk through with his shoulders facing forward, and so he faced towards the shaft and walked in sideways, and as he grabbed hold of this first upright he come to, it leaned out with him, and he squeezed in between the horse and upright, and he fell out with it. He swung out with the upright, the upright leaned up against the wall, the upright being longer than the width of the shaft and the upright leaned in about a thirty degree angle, and he hung on for about two or three seconds, and finally his fingers gave way and he dropped." The negligence imputed to the defendants is their failure to "properly construct and erect the said vertical bars or pillars and particularly the one in question," "to properly bolt, fasten and rivet the said bars and leaving the same in a seemingly safe and permanent condition," and "to give any notice of the unsafe and dangerous condition of the said bars or pillars."
The plaintiff and his witness Raymond admit that one could have gained a passage under the scaffold, but they assert that the space thereunder was incumbered by fireproofing, barrels, laths and other material. Raymond admits, however, that one could have moved three or four bundles of laths and passed underneath the scaffold in perfect safety, if he had "gone and asked permission of the lather or whoever owned the property that was there." There was a sharp contradiction as to whether there was any material impediment. But further, there is convincing evidence that at this time there was a passageway, evidently the projected hallway, running from front to rear, in such condition that one could pass along it. The plaintiff testifies that he did not look to see whether there was such a passageway. Raymond, in rebuttal, testifies that there was no flooring on it, simply beams running across an open space; but it is clear enough that it afforded access. The plaintiff says that he thought the way he attempted to take was the easiest and the shortest, and Raymond says it was the nearest. The plaintiff knew that the building was under construction; he had been working on this floor for "one day or two" or "maybe more," and he was familiar with the plans of the floor and knew the rooms in it, though he testifies, "I cannot understand that plan," referring to a plan exhibited to him. There is no proof that any other person had ever attempted such a passage, and there is no proof of any invitation.
I think that there is no negligence shown as against the defendants. The case falls within the rule that negligence is not imputable to an accident, not "the reasonable, natural and probable result" under the circumstances, "which ought to have been foreseen by the defendant in the exercise of" due prudence. I have collated some of the authorities in McKenzie v. Waddell Coal Co. ( 89 App. Div. 415) and in Saverio-Cella v. Brooklyn Union R.R. Co. (55 id. 98) and I need not repeat them. The defendants had not finished this work. I cannot see that they lacked due prudence in leaving for a time this iron bar incompletely secured so that they ought to have foreseen, notwithstanding other and natural means of passage, that a workman, if "not too large" a man, might attempt to "squeeze through" the narrow opening sideways, and in so doing would use the iron bar on the assumption that it was then so secured that he might with impunity use it to widen his passage or to aid his passage or as a fender against the open shaft.
I advise a reversal of the judgment and order and the granting of a new trial.
HIRSCHBERG, P.J., BARTLETT, RICH and MILLER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.