APPEAL by the defendant, The Ferro-Concrete Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 25th day of March, 1911, upon the verdict of a jury for $12,000, and from said judgment as corrected and amended by an order entered in said clerk's office on the 26th day of April, 1911, and also from an order entered on the 25th day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.
A.D. Jenney, for the appellant.
Harlan W. Rippey, for the respondent.
In the summer of 1909 the defendant was engaged in the construction of a large reinforced concrete building on Hart street, in the city of Rochester. The work was carried on by separate gangs of men, each devoted to its specific kind of work. The plaintiff, a young man twenty-seven years of age, was employed with the concrete gang in wheeling concrete and finishing off the floors of that material. The first floor was sixteen feet from the ground, and at the time of the accident most of the false forms used in the process of construction had been removed. There were heavy planks between the girders, each over eighteen feet in length, eight inches wide and two inches thick, which were held in position by supporting shores or posts four inches square resting on the ground, as the concrete floor had not been laid. Concrete had been poured into troughs above these planks and when that had hardened the shores were knocked from under, the braces removed and the planks pried loose with pinch bars and taken down. A wrecking gang had charge generally of the removal of the false work and it was composed of men experienced in that kind of work. Much of the wrecking work had already been done by this gang, but the support was left in the center of each of the heavy planks in one part of the building.
On the morning of the accident, Culp, the foreman in general charge of the work on the building, told Chaney to remove these shores and braces and take down the planks, and Adams was directed to assist him. Neither of these men, as the foreman knew, had had any experience in this work, nor did Culp give them any instructions as to the manner of doing it. Culp directed them to take ladders and carry down these planks. A little later in the forenoon he told the plaintiff to go over and help Chaney, and the latter directed him to knock out the shoring and carry it off. Chaney and Adams went up the ladders, holding up the end of the plank with bars, and the plaintiff knocked out the shoring and carried it and the braces away, and the other two men pried the planks loose and carried them down. Four planks had been removed in this manner. As they were standing on their respective ladders they were obliged to reach above their heads in order to pry loose and let
down this soggy, heavy plank, and it got away from them. The ladders were not steady, as the ground floor was uneven, and, in the effort to save themselves and the plank from falling, they swerved it to one side and it hit the plaintiff, a nail or spike penetrating his skull and causing injuries resulting in the paralysis of one side and epileptic seizures which will be permanent.
Culp, the foreman, knew of the manner in which this work was carried on and did not attempt to change the method of its performance. He knew the plaintiff was removing the shores and braces, and knew of the inexperience of Chaney and Adams, and that the plaintiff was one of the concrete gang on this building and had had no experience whatever in the work which he directed him to perform until the day he was so frightfully injured by the taking down of this heavy plank. The plaintiff was obeying the direction of Chaney to remove the shore and braces when the plank fell down and injured him. No evidence was offered on the part of the defendant, and the plaintiff made out a prima facie case, and the verdict was not against the weight of evidence.
In the first place, the defendant did not furnish a reasonably safe place in the circumstances which the evidence discloses. We appreciate this rule is to be applied in the light of the fact that this building was in process of construction, and that the business was, to some extent, hazardous. Notwithstanding these facts, it was still incumbent upon the defendant to protect its men so far as it was reasonably able to do so.
In the second place, the men employed to do this work were incompetent and inexperienced. The evidence shows that the men who usually did such work consisted of a wrecking gang and were men familiar with the business and the most feasible and safe way of performing it. Chaney and Adams received no instructions from the defendant. It is not a question of rules; it is a question of failure to warn or instruct the plaintiff, and also Chaney ...