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Miller v. Levering and Garrigues Co.

Supreme Court of New York, Appellate Division

April 7, 1911

HARRY H. MILLER, Appellant,
v.
LEVERING AND GARRIGUES COMPANY, Respondent.

Page 13

APPEAL by the plaintiff, Harry H. Miller, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 23d day of December, 1910, affirming a judgment of the City Court of the city of New York in favor of the defendant, entered on the 10th day of May, 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case, and also affirming an order of said City Court, entered on the 12th day of May, 1910, denying the plaintiff's motion for a new trial made upon the minutes.

COUNSEL

Clifford C. Roberts, for the appellant.

Allan E. Brosmith, for the respondent.

INGRAHAM, P. J.:

The action is for personal injuries. The plaintiff was a bricklayer, and on October 21, 1909, he was at work on a building in the course of erection on the corner of Fourth avenue and Twenty-seventh street in the city of New York, in the employ of Andrew J. Robinson & Co., who were the general contractors. The defendants had a contract for the ironwork, and the ironworkers were at the time of the accident riveting the iron girders from the ninth to the twelfth floor. The plaintiff was at work on a scaffold outside of the building at the seventh floor. On the morning of the accident the ironworkers were building a scaffold

Page 14

immediately over the scaffold upon which the plaintiff was at work, when an iron bolt dropped from above and struck the plaintiff on the head, causing injuries to recover for which the action is brought. The plaintiff testified that he had been working at the construction of buildings of this character for about eighteen years, was familiar with the kind of bolts used by the structural ironworkers. He was then shown a bolt which he testified had been given to him by a man who was working with him at the time of the accident, and was asked whether or not that was the kind of bolt used by the structural ironworkers. That was objected to by the defendant and the objection sustained. He was then asked whether this iron bolt was used in iron construction. That was objected to and the objection sustained. He was then asked whether he had seen similar bolts in use by the ironworkers on this building within a day or two of the accident. That was objected to and the objection sustained. On cross-examination the plaintiff testified that other contractors were working in the building on the day of the accident; and on redirect he was asked whether the employees of other contractors were working directly above him on that day. That was objected to by the defendant and the objection sustained. Meehan, who was working on a scaffold with the plaintiff at the time of the accident, testified that prior to the accident there were no bolts on the scaffold; that immediately after the accident he picked up a bolt upon the scaffold. He was asked what kind of a bolt it was, which was objected to and the objection sustained. The witness testified that he caught the plaintiff as he fell after being struck by something. He then testified that he could see men working above him and knew what they were doing, and was asked what they were doing, when he answered that they were unhitching those bolts to put hot rivets in. The defendant's counsel then objected to the question and moved to strike out the answer, which objection was sustained, and the motion was granted. He then testified that these ironworkers were on about the twelfth floor, immediately above where the plaintiff and the witness were working. He was then asked whether he knew what the bolts were used for, which was objected to by the defendant and the objection sustained. Other questions

Page 15

were asked as to what these bolts were used for, all of which testimony was excluded by the court. Foley, another workman at work on this scaffold upon which the plaintiff was working, testified that the bolt produced in court struck the plaintiff and then struck the witness on the shoulder and fell on the scaffold; that he looked up and immediately above him saw persons connecting beams to the iron girders on the outside; that he was familiar with the kind of bolts that were used to connect the iron construction work. He was then shown the bolt which had been found upon the scaffold, and was asked whether bolts of that kind were used for that purpose. This was objected to by the defendant and excluded. The witness further testified that in this iron construction, when the beams were lowered into place, the bolts were placed through the beams and girders to hold them in place until they were riveted. After some rivets had been placed through the beams and girders the bolts would be taken out and rivets substituted. He was then asked whether these bolts like the one that fell and struck the plaintiff were the temporary bolts that were put in. That was objected to and excluded. An employee of the contractors who were doing the ornamental ironwork on the building was called and testified that his employers did not use any bolts of the size and dimension of the bolt produced by the plaintiff. An employee of the fireproofers, who were also working on the building, was called and testified that his employers did not use any of the bolts of the character produced. There was further testimony offered that none of the other contractors used bolts similar to the one produced by the plaintiff, which was all objected to by the defendant and excluded. The plaintiff then rested and the court dismissed the complaint.

The defendant excepted to these rulings upon evidence, and I think it was error to exclude the testimony. The evidence allowed with that excluded would have justified the jury in finding that the plaintiff was engaged in laying brick on a scaffold on the seventh floor on the outside of the building; that immediately above him, between the ninth and twelfth floors, the defendant's employees were at work engaged in the construction of the ironwork, and that no other workmen were at work on the outside of the building; that in constructing

Page 16

this ironwork the constructors would lower a beam into place and connect it with the girders by temporary bolts through the holes in which rivets were subsequently placed; that as rivets were placed in these holes the iron bolts were withdrawn and rivets substituted; that there were no other contractors in the building at work immediately above the plaintiff and that none of the other contractors in the building used the kind of bolts which the jury might have found fell and struck the plaintiff; that at the time of the accident the defendant's employees were engaged in riveting the beams and girders together and that the only men working outside of the building, except those engaged on the brickwork, were the defendant's employees. No reasonable man from this testimony would doubt that the bolt which fell was one that the defendant's employees were using in the iron construction.

The leading case upon this question is Wolf v. American Tract Society (164 N.Y. 30). In that case the plaintiff was in the street in front of a building being erected by the tract society, who owned the property. There were nineteen independent contractors, employing about 250 men, at work upon the building. On the day of the accident the plaintiff was employed by one of the contractors furnishing the steamfitting for the building and engaged in trucking a load of pipe for use in the building. The truck was stopped in the street, and while the plaintiff was on the truck attending to his duties a brick fell from the building which had then reached the ninth story and struck the plaintiff upon the head, inflicting serious injuries. There was no proof to show from what part of the building the brick came, who dropped it or set it in motion. There was no proof to identify any person in or about the building as the immediate author of the wrong. The court said: 'Each of ...


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