Opinion
December 18, 1961
In a negligence action by plaintiff Moses as administratrix, to recover damages for wrongful death and for conscious pain and suffering resulting from an electric shock sustained by her intestate, the parties cross-appeal as follows from a judgment of the Supreme Court, Queens County, entered June 22, 1960, after a jury trial: (1) Kingsboro Construction Co., Inc., an impleaded third-party and fifth-party defendant, appeals from so much of the judgment as: (a) is in favor of plaintiff in the sum of $104,158.21 against defendants H.R.H. Construction Corporation and Linko Corporation; and (b) as directs judgment over against it in the same amount, in favor of H.R.H. Construction Corporation and Linko Corporation. (2) Defendant and third-party plaintiff, H.R.H. Construction Corporation, appeal from so much of the judgment as: (a) is in favor of plaintiff against it; (b) dismisses its cross complaint against defendant Consolidated Edison Co.; (c) dismisses its third-party complaint against the third-party defendants Sidney V. Lipkins, Milton Lipkins, Efrem A. Kahn and Louis Kahn, doing business as Lipkins-Kahn Co.; (d) dismisses its cross complaint against defendant Linko Corporation; and (e) dismisses its cross complaint against defendant Broadway Maintenance Corp. (3) Defendant Linko Corporation appeals from so much of the judgment as: (a) is in favor of plaintiff against it, and (b) is in favor of defendant H.R.H. Construction Corporation on its cross complaint against said corporation. (4) Plaintiff appeals from so much of the judgment as: (a) is in favor of defendant Consolidated Edison Co., dismissing plaintiff's complaint; (b) is in favor of defendants H.R.H. Construction Corporation, Linko Corporation and Broadway Maintenance Corp., dismissing plaintiff's cause of action for conscious pain and suffering; and (c) is in favor of defendant Broadway Maintenance Corporation as rendered by the jury. Plaintiff also appeals from so much of an order of said court, dated February 26, 1960, as denies her motion to set aside that part of the jury's verdict which is in favor of defendant Broadway Maintenance Corp., against her. Judgment, insofar as appealed from, affirmed, without costs. Appeal from order dismissed, without costs. No such order is printed in the record. H.R.H. Construction Corporation was the contractor for the erection of the buildings to be constructed in a large co-operative apartment project, sponsored by Linko Corporation, and was paid by Linko. Decedent was an employee of Kingsboro Construction Co., Inc., the subcontractor for the concrete foundation work, hired by H.R.H. A crane with a boom 100 feet long, from which a bucket was suspended, and which was operated by a fellow employee of decedent, was used to transport concrete from the truck where it was mixed to the forms to be filled. Decedent's job was to guide the bucket by hand and to empty the concrete into the forms. He was electrocuted when the cable holding the bucket either touched a high tension wire, about 30 feet above the ground, or came into such close proximity to it that the current arced from the wire to the cable. The wire had been installed by Broadway Maintenance Corp., apparently at the request of Lipkins-Kahn Co., the original owners of the property, to supply light and power to the development office on the premises. In our opinion, the finding of fact implicit in the jury's verdict, that H.R.H. and Linko violated their common-law and statutory duty to afford decedent a safe place to work, was supported by the proof. We are also of the opinion that the cause of action for conscious pain and suffering was properly dismissed by the trial court, as there was no proof that decedent was conscious and suffered pain following the accident. While it is doubtful that plaintiff is in a position to urge that the court erred in dismissing the complaint against Edison at the close of her case, in view of her virtual acquiescence in such ruling (cf. Peterson v. Swan, 119 N.Y. 662; La Bue v. Tilo Roofing Co., 282 App. Div. 710, affd. 306 N.Y. 890), the dismissal was correct in any event in view of the absence of any proof of negligence on the part of such defendant. The verdict in favor of Broadway Maintenance was justified. On the record presented the jury could have found that Broadway had not retained supervision or control over the wires after they had been installed; and we find no error in the court's charge with respect to the liability of such defendant. Plaintiff may not now argue that Edison and Broadway Maintenance may be held liable on the ground that they created a nuisance, such theory neither having been pleaded nor submitted to the jury (cf. Lindlots Realty Corp. v. County of Suffolk, 278 N.Y. 45, 50; York v. New York, Ontario Western Ry. Co., 108 App. Div. 126; Jewtraw v. Davis, 277 App. Div. 918). The proof supported the finding that Kingsboro was actively negligent and that H.R.H. and Linko were only passively negligent; and the judgment over was therefore properly directed in favor of H.R.H. and Linko, against Kingsboro (cf. McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 328). The question of whether there had been a violation by H.R.H. and Linko of a rule promulgated by the Board of Standards and Appeals, pursuant to section 241 Lab. of the Labor Law, precluding a recovery over by them (cf. Rufo v. Orlando, 309 N.Y. 345, 350), was not urged by Kingsboro at the trial and was not saved for review in this court (cf. Sterrett v. Third Nat. Bank of Buffalo, 122 N.Y. 659; Fisher v. Wakefield Park Realty Co., 203 N.Y. 539, 540; Wells v. Fisher, 237 N.Y. 79, 84; Lindlots Realty Corp. v. County of Suffolk, 278 N.Y. 45, 50, supra). The other contentions of the appellants have been considered. We find nothing therein which requires a reversal of the judgment. Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.