Opinion
November 7, 1949.
Action for damages for personal injuries to the plaintiff, claimed to have been caused by the negligent maintenance of a pole in the churchyard of the appealing defendants, which gave way while plaintiff stood on a ladder placed against it. The jury rendered a verdict for said defendants. On a second reargument of a motion made and denied on the return of the verdict, the motion was granted and the verdict set aside "in the interests of justice". The appeal is from the order entered thereon. Order, on reargument, reversed on the law, with costs, the motion denied, the verdict reinstated, and judgment directed to be entered in accord therewith, with costs. The complaint alleged negligence on the part of the defendants and freedom from negligence on plaintiff's part. The jury were instructed that the burden was upon plaintiff to establish his freedom from contributory negligence. Both counsel assumed that the charge was properly given. After the verdict, counsel for plaintiff, in the belief that the plaintiff was an employee of the appellants, sought and eventually succeeded in having the verdict set aside on the ground that the court should have charged, notwithstanding the allegations of the complaint, that the burden of establishing contributory negligence rested on the appellants by reason of the provisions of section 5 of the Employers' Liability Law, which has been held applicable in common-law actions. ( Hall v. New York Tel. Co., 220 N.Y. 299.) The proof conclusively establishes that plaintiff was not an employee of the appellants. Giving him the benefit of the best inferences from all the testimony, he was a donor of free labor on occasion to the church, which he at times attended. The testimony of the pastor of the church warranted findings that at the end of each year plaintiff presented his bill, which could be found to have included his services, and that the bill was paid. The appellants gave plaintiff no orders as to what he should do and did not direct the manner of performance. Control of the means and methods were with plaintiff. He was not bound by regular hours of work. If not a donor, he was an independent contractor. ( Matter of Beach v. Velzy, 238 N.Y. 100; Matter of Litts v. Risley Lbr. Co., 224 N.Y. 321; Krusall v. Gruskan, 239 App. Div. 796.) The charge that plaintiff had the burden of establishing his freedom from contributory negligence was therefore proper. The verdict which, apparently, was based on a finding of contributory negligence, was not against the weight of the evidence. Plaintiff denied that he, with others, had installed the pole which fell. The pastor of the church swore that he had. The jury, in accordance with the instructions of the court, could have said plaintiff was not worthy of belief. Moreover, the witnesses produced by him swore that the pole had not been installed in accordance with good practice and was subject to rot. It was for the jury to say whether plaintiff had made the installation, and whether he used reasonable care at the time he was injured if, in fact, he had made the installation. The interests of justice do not warrant a new trial. Nolan, P.J., Carswell, Johnston, Sneed and MacCrate, JJ., concur. [See post, p. 870.]