APPEAL by the defendant, the Snare & Triest Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 1911, upon the verdict of a jury for $2,500, and also from an order entered in said clerk's office on the 9th day of February, 1911, denying the defendant's motion for a new trial made upon the minutes.
Hector M. Hitchings, for the appellant.
William Edgar Weaver, for the respondent.
On the 11th day of August, 1908, Delancey street on both sides of its intersection with Eldridge street had been excavated for the construction of the subway loop of the Williamsburg Bridge, and a temporary carriageway had been constructed over the excavation on timbers which also supported a gas main owned by the Consolidated Gas Company. Temporary manholes affording access to the gas main had been made at intervals and they were inclosed on the surface of the streets by rectangular fences formed by four upright pieces of timber to which two boards were nailed on each of the four sides. One of these manholes was just easterly of the intersection of the said streets and another was a short distance westerly of said intersection. The plaintiff was in the employ of the Consolidated Gas Company and it was his duty to inspect the main at these manholes for leaks. A truck hauling a steel girder which was to be used in the subway construction work broke through
the temporary carriageway at the intersection of said streets. One Peter Reeves and a gang of men were engaged on the subway construction work in the vicinity and were using, when occasion required it, a hoisting engine and block and pulley owned by the defendant. It is claimed by the plaintiff that these men were in the employ of the defendant, and the defendant contends that they were not in its employ, but were working for the Metropolitan Bridge and Construction Company, a New Jersey corporation. With a view to removing the obstruction and to moving the girder to a point where it was needed, Reeves directed that the truck be detached from the girder and drawn out leaving the girder on the surface of the temporary carriageway, and he then directed that it be moved to the westerly end of the crossing by the use of the engine, block and tackle. With a view to hauling the girder in the direction desired, a snatch-block with a pulley over which the rope connecting the drum of the engine and the girder ran was attempted to be secured in place, by the use of an appliance known as a shackle, in the vicinity of the manhole located westerly of the crossing. The power was finally applied and after the girder had been moved a few feet the shackle spread, letting the bolt which passed through the eyes of the shackle out at one end, and part of the tackle was thrown across the street to the east and came violently in contact with one of the boards inclosing the manhole opening near which the plaintiff was standing or walking, driving it against him and inflicting injuries to recover for which he brought this action.
The jury were warranted in finding that the shackle spread owing to the fact that the bolt was not secured at all by a nut or otherwise, or that an attempt was made to secure it by screwing a nut on only part way, so that when the strain came the threads of the bolt were stripped letting the nut off.
The evidence was sufficient to require the submission to the jury of the question as to whether the plaintiff was free from contributory negligence, and whether there was negligence on the part of those doing the work, and was sufficient to sustain the verdict of the jury on those issues. The defendant, however, denied liability for the acts from which the plaintiff suffered the injury, and contended that the men doing the
work were not in its employ, and that became a vital issue on the trial. The plaintiff called as a witness said Reeves, who testified that on the day of the accident he was working in Delancey street on the Subway between the Brooklyn and Williamsburg Bridges. He was then asked: 'In whose employ were you?' This was objected to by counsel for the defendant on the ground that it was irrelevant, incompetent, immaterial, and called for a conclusion of the witness, and that the question was one for the jury to determine. The objection was overruled and an exception duly taken. Reeves answered that he was in the employ of the defendant and that his position was that of foreman of steel erection; and under like objection and exception he was permitted to testify that he had worked for the defendant about four or five years in the capacity of foreman, and was foreman of this work at the time of the accident. He further testified that the work of moving the girder was being done by a gang of men under him and pursuant to his orders. It appeared that this foreman and the gang of men employed under him received their pay in envelopes upon which was printed 'Metropolitan Bridge & Construction Company,' and that they signed receipts for their pay as having been received from said company. A letter produced by Reeves signed in the name of the defendant by W. G. Triest, as vice-president, under date of May 11, 1909, addressed 'To Whom It May Concern,' introduced in evidence, certifies that Reeves 'has been in our employ for about four years as Foreman of Erection,' and in other respects it was a letter of recommendation. W. G. Triest, who signed the letter, was called as a witness, and he testified that the defendant never employed Reeves, and that he stated that Reeves had been in defendant's employ through inadvertence. Several of the men engaged on this work were called by the defendant, and testified that they were in the employ of the Metropolitan Bridge and Construction Company at the time of the accident, and among others, the head paymaster and timekeeper, who testified to the manner in which the employees were paid, and in which receipts from the employees were taken and preserved by him; that the money which he received to give out and which he did give out was in envelopes of the Metropolitan
Bridge and Construction Company, and that he never paid out any money in the name of the defendant. An agreement in writing, bearing date the 1st day of May, 1904, and duly acknowledged on the 17th day of November, 1906, between the defendant, a domestic corporation, party of the first part, and the Metropolitan Bridge and Construction Company, a corporation organized under the laws of the State of New Jersey, as party of the second part, was introduced and read in evidence on the part of the defendant. By this agreement the party of the second part agreed 'to accept, enter upon, do and perform all necessary work, labor and service for the erection, construction and completion of the constructive part of each and every contract hereafter obtained by the party of the first part for masonry, iron, steel, composite or construction work of any kind or nature, and to perform such construction or erection work in a good and workmanlike manner, to the satisfaction of the party of the first part, or of any architect specified in the first party's contract, in strict accordance with the plans, specifications and details of said work, in accordance with all legal requirements and with the requirements of the various departments, municipal bodies, architects, engineers or such person or persons as may be in charge of and superintending the said work on the part of the person, persons or corporations contracting with said party of the first part, and in the prosecution of this agreement to supply all needful foremen, superintendents and workmen of adequate skill and ability and to accept and receive from said first party and be responsible for all material necessary for said construction or erection.'
The party of the first part, being the defendant herein, obligated itself upon obtaining any contract for work of the description in that part of the contract already quoted, to 'turn over the constructive or erective part of said contract to the party of the second part, and to pay the said party of the second part for the said erective or constructive work, as the same progresses, the actual cost to said second party of the said work labor and services (except services and labor of superintendents), said cost to be arrived at by taking the aggregate weekly payrolls of the party of the second part and liquidating the same in weekly payments, and that in addition thereto the
said party of the first part agrees to furnish and loan to said second party all necessary tools, tackle, derricks, ropes, ladders, scaffolding or appliances necessary for such erection or construction, and to pay to the party of the second part on the first day of each month hereafter the further and additional sum of 5% upon the total payrolls herein, excepting amounts paid for superintendents and paid during the preceding month, it being understood and agreed that said 5% is to be received by the party of the second part in full compensation for its services in the said work.'
It was further agreed that the party of the second part, being the Metropolitan Bridge and Construction Company, was to hire and pay all employees on the work and the salaries of the necessary superintendents, and to immediately pay and discharge any mechanics' liens filed against the work; and that the party of the first part, being the defendant herein, should furnish all materials and deliver the same to the party of the second part, and that the contract should continue for five years, but might be sooner terminated by either party on two weeks' notice in writing. The defendant also proved a formal notice in writing given by it to the Metropolitan Bridge and Construction Company under said agreement submitting plans, specifications, details and drawings for the steel for its contract for this subway work, and calling upon the Metropolitan Bridge and Construction Company to do the work pursuant to said agreement; and the acknowledgment in writing from the Metropolitan Bridge and Construction Company of the receipt of said notification containing a promise on its part to proceed with the work. The secretary of the Metropolitan Bridge and Construction Company had formerly been a stenographer in the defendant's employ, and the only office the Metropolitan Bridge and Construction Company had was desk room in the office of the defendant. Triest testified that neither he nor ...