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Mulleny v. McDonald

Supreme Court of New York, Appellate Division

February 19, 1909

MULLENY
v.
MCDONALD ET AL.

Appeal from Trial Term, New York County.

Action for personal injuries by William Mulleny against Ranald H. McDonald and another, copartners, doing business under the firm name of Ranald H. McDonald & Co. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed.

Where an employé sues for injuries caused by being hit by a brick falling from a floor above in a building where he was at work, he must show what caused it to fall, that bricks had fallen before, and that defendant had notice.

Frank Verner Johnson (Louis Cohn, of counsel), for appellants.

Thomas J. O'Neill (Andrew Byrne, of counsel), for respondent.

Argued before PATTERSON, P. J., and INGRAHAM, McLAUGHLIN, CLARKE, and HOUGHTON, JJ.

CLARKE, J.

The plaintiff was employed by defendants as a laborer in a building which was being remodeled. The defendants were the general contractors. There were two separate contractors working on the building. Frank M. Tench & Co. were doing the iron work, and Edward F. Roach the bricklaying and mason work. It was a loft building. The old side walls remained up. The bricklayers were cutting out what were called " chasers" in the walls, about 16 inches wide and about 12 inches deep, to set the steel columns in to carry the floor beams. The defendants cleaned away the dirt, handled the [115 N.Y.S. 31] lumber, and did all the carpenter work upon the building. The plaintiff, a direct employe of the defendants, had been working upon the building two weeks at the time of the accident. He was engaged with other men in unloading a load of lumber, and with another man had just carried in a beam from the street, on the first floor, level with the sidewalk. As he was going out for another beam, and about 10 yards from the front, he was struck upon the shoulder with what is described as a " clodded brick" -that is, a brick with mortar attached to it-which fell from the floor above, and suffered a dislocation of the shoulder and two fractured ribs. This action is under the common law. The learned court charged the jury, inter alia, as follows:

" It appears from the testimony here that there were other contractors upon the work on that building, and if you, gentlemen, are not satisfied that this accident happened as the result of the negligence of this defendant, then the verdict of the jury should be for the defendant. If this accident happened through the negligence of any other contractor, his agents or servants, who are engaged in working upon that building, then this defendant cannot be held liable for the negligence of those contractors, their agents or servants. If this accident happened through the negligence of a fellow servant or coworkman of this plaintiff-that is, through the negligence of some agent or servant who was employed by this defendant-then under the law the verdict of the jury should be for the defendant. This plaintiff, in engaging in work of this character, assumed the risks that were ordinarily incident to work of that kind, and if he suffered injury as the result of such a risk as was incident to the business, and only because of such a risk, then the verdict of the jury should be for the defendant. The claim here that the plaintiff seeks to sustain is based, as I said, upon the ground that this defendant failed to provide him with a reasonably safe place in which to discharge his work.*** It is for you to determine whether or not this defendant omitted to exercise that degree of care and prudence in providing a safe place for his employes to work which ordinary prudence and caution requires him to exercise."

The defendants excepted to the submission to the jury whether or not defendants furnished a safe place for the plaintiff to work, and again asked the court to charge that, if the negligent act of any of the employes of the defendants caused the brick to fall, the verdict must be for the defendant, and the court so charged. There is no proof of who dropped the brick. The defendants gave evidence tending to show that the people on the floor above were all employes of the mason. The plaintiff undertook to show that everybody in the building was an employe of the defendants; but under the law of the case, as laid down by the court, the jury had no right to infer that the defendants were liable from the mere fact that the brick fell and struck the plaintiff. The court also charged that, whether the brick was dropped by an employe of an independent contractor or by a fellow workman, the defendants were not responsible. There was a failure to prove by whom it was dropped, what particular work was going on when it was dropped, or where it fell from, except that it fell from the floor above.

The sole ground for recovery, as sent to the jury, was the obligation to furnish a safe place. Plaintiff's witness Cox testified:

" That clodded brick fell from the floor above. There was double scaffolding at the time on the floor above.*** This floor, from which this brick fell on the plaintiff, was covered so that it was safe for pedestrians to walk on; but there were openings in it, and on the floor of the building, or at least in [115 N.Y.S. 32] the front of the space that they had planked in, there was nothing on the front of it."

He was asked:

" Is there any method ordinarily employed in the business to prevent the falling of brick from such floors ...

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