The opinion of the court was delivered by: RAYFIEL
Harvey Miller commenced an action against Pennsylvania Railroad Company, hereinafter called 'Penn', to recover damages for personal injuries sustained by him as a result of 'Penn's' negligence. The latter then caused a third-party complaint to be served upon plaintiff's employer, Allen N. Spooner & Son, Inc., hereinafter called 'Spooner', claiming the right to indemnification by the latter if the plaintiff should recover a judgment against it.
During the course of the trial Miller's claim against 'Penn' was settled by payment of the sum of $ 70,082.88. Counsel for 'Spooner' attended the negotiations leading toward the settlement, and agreed to make no claim that the same was improper or improvident. The third-party action was then severed, and the attorneys for the parties stipulated that the issues therein presented be tried before this Court without a jury. It was further stipulated that the evidence introduced at the trial of Miller's action against 'Penn' would be deemed a part of the record in the third-party action, so far as the same might be applicable thereto.
These are the facts: 'Penn' owns, controls, maintains, and operates a building located on the east side of First Avenue, between 33rd and 34th Streets, in the Borough of Manhattan, New York City, which is known as shaft-house No. 4. It houses certain electrical equipment, including fans which are used to ventilate the tunnels through which the trains running between Long Island City and 'Penn's' terminal in New York City are operated.
Also included in the equipment was a concrete cowl, also referred to as a vent or duct, which ran through the north wall of the shaft-house. It had become defective, and 'Penn' hired 'Spooner' to remove it, and to replace it with one of steel, which was to be constructed by 'Spooner' according to plans and specifications furnished by 'Penn'. The construction and installation were to be done under the terms and conditions of an agreement between 'Penn' and 'Spooner', bearing date the 8th day of May, 1942, and hereinafter referred to as the General Contract.
On or about October 7, 1950, the steel cowl was delivered at the shaft-house for installation. After examination and measurement it was determined that it could not be installed in one piece, and accordingly it was cut in two for installation in sections. The work proceeded on October 7th in the presence, among others, of a Mr. Tomlinson and a Mr. Walker, respectively an inspector and a master carpenter in the employ of 'Penn', and George Spooner, an officer of 'Spooner'.
The work could not be completed on that day, and on Saturday, October 14th, a group of 'Spooner's' employees returned to continue their work. Since, as hereinbefore stated, the cowl could not be installed in one piece, it became necessary to weld the two sections together. That task was assigned to Miller and one Sharkey, both in the employ of 'Spooner' as welders.
The welding operation, with which we are here chiefly concerned, could not be completed on October 14th, and the 'Spooner' employees, including Miller and Sharkey, returned on the following day, Sunday, October 15th, to complete it. During the afternoon of that day Miller and Sharkey, taking turns, were engaged in welding the lip of the cowl to the lip of the housing containing the ventilating fan.
Shortly after 9:00 P.M. on October 15th, while Sharkey was welding, and Miller was standing on a platform about eighteen inches from him, there was a bright flash and a terrific explosion, following which the shaft-house became filled with dust and smoke. Miller was thrown down and suffered injuries which were the basis of his action against 'Penn'. His clothes were smoldering or smoking, and part of his clothing had been torn from his body.
The high-tension wires in the shaft-house were de-energized on October 7th, when the cowl was delivered and the work thereon begun. This was done at the direction or request of Mr. Walker, of 'Penn'. However, they were not de-energized on October 14th, or on October 15th, the day of the accident.
'Penn' rests its claims against 'Spooner' on three main points: (1) that 'Spooner' was under an implied obligation to perform its work under the General Contract in a reasonably safe and proper manner; that it failed to do so for the reasons hereinafter in this paragraph stated, and that by reason thereof 'Penn' is entitled to be indemnified by 'Spooner' to the extent of the payment made to Miller under the aforementioned settlement.
(2) that 'Spooner' failed to inform 'Penn' of the fact that its men would be working in the shaft-house on Sunday, October 15th, and by reason thereof the high-tension wires were not de-energized, thus exposing 'Penn' to liability to the plaintiff for failing to provide him with a safe place to work; that 'Spooner's' failure to so inform 'Penn', and its direction to Miller to do his work under the existing conditions, constituted active, primary or even sole negligence, and that 'Penn's' negligence, if any, was passive; (3) that 'Spooner's' acts and failures to act, as aforesaid, were violative of a provision in the General Contract, under which 'Spooner' agreed 'to take, use, provide and make all proper, necessary, and sufficient precautions against accidents, injuries or damages to any person or property * * *.'
In support of the first of these points 'Penn' cites the case of Valerio v. American President Lines, D.C., 112 F.Supp. 202, 204, wherein Judge Bondy, quoting from the case of Barber SS Lines v. Quinn Bros., D.C., 104 F.Supp. 78, said: "* * * where a person has a non-delegable duty with respect to the condition of his premises or vessel but has made a contract with another to perform that duty, and the other performs it negligently so as to make the owner liable to a person later injured, then, as a matter of implied contract, the owner is entitled to restitution from the other for reasonable damages paid the injured person."
The principle stated in the Valerio case, supra, is well established, but the facts there are clearly distinguishable from those in the instant case. 'Spooner', while required to use reasonable precautions to avoid injury or damage to person or property, was under no obligation, express or implied, to assume, or to relieve 'Penn' of its duty to provide the plaintiff with a safe place to work. 'Spooner' did not create or suffer the unsafe conditions which resulted in plaintiff's injuries; nor did it have any control over the electric equipment and power involved therein. The other cases cited by 'Penn' in support of that point are likewise distinguishable.
'Penn's' second point, to wit, that 'Spooner' failed to inform it of the fact that the welding operation would be continued on Sunday, October 15th, and its consequent failure to de-energize the high-tension wires on that day, was not supported by the evidence in the case. Following is some of the testimony which justifies such a conclusion. For instance, Spooner testified that he had had a conversation with Mr. Perry, of 'Penn', during the week of October 2nd. During his testimony he was asked (P. 281, S.M. 1st trial):
'Q. Will you give this court and jury in substance the conversation that you had with Mr. Perry during the week where Saturday was October 7th; tell in substance that conversation. A. Well, a resume of it, it was roughly that I told him that we were going to bring this cowl up on Saturday (October 7th) and place it. He agreed with me on that and said it should be done on the weekend because of the lighter traffic on the railroad at that time. He also said it should be done the following weekend and completed, if possible.' (matter in parenthesis added.) Perry, of 'Penn', testified, on cross-examination, (S.M. 2nd trial, P. 37) 'Q. * * * isn't it a fact that through these tunnels which this duct house protected, that traffic was lighter on Saturdays and Sundays than it was during the rest of the week? A. Generally speaking that is correct.
'Q. Now, isn't it a fact that you as a railroad man wanted this work done during the light traffic period, that is over Saturday and Sundays? A. That would be correct.' And later in his cross-examination, (see pages 44 and 45 S.M. 2nd trial) Perry admitted that in the course of a conversation he had with Spooner during the week of October 2nd (1950) he told Spooner that the cowl should be brought in 'on the weekend because of the lighter traffic on the railroad at that time.' Perry also said that it should be done the following weekend and completed, if possible.
I believe that 'Penn' knew that 'Spooner's' men would be working on Sunday, October 15th. However, even if it had no actual knowledge of that fact, it had reason to believe that they would, and under such circumstances 'Penn' would be guilty of negligence. In the case of Pike v. Consolidated Edison Company the plaintiff sued to recover damages for the death of an employee of a construction company, who was electrocuted while unloading steel from a truck when the cable attached to the crane used in the operation came in contact with high-tension wires maintained by the defendant. The latter had been informed that a building was to be constructed at the scene, but claimed that it had no action notice as to when the crane would be in operation. The plaintiff recovered a judgment, which was reversed by the Appellate Division, 277 App.Div. 1020, 100 N.Y.S.2d 892, which dismissed the complaint. The Court of Appeals, reversed, 303 N.Y. 1, 99 N.E.2d 885, 886 saying '* * * the defendant Consolidated Edison Company had full, exact and early information of the nature of the building operation that was being carried on at 950 Georgia Avenue and thus that company had been warned of the probability that workmen erecting the overhead structure there would perchance be exposed to the undisclosed deadly peril which caused the death of the intestate. In these circumstances, the defendant Consolidated Edison Company was bound to ascertain the time when the work of building the overhead structure at 950 Georgia Avenue was to begin, in order to enable itself to protect workmen against the danger that was there hidden in its high tension wires * * *.' (Emphasis added.) 'Penn' also cited that case, contending that its failure to perform its duty to Miller constituted passive negligence only. I disagree.
There is still another reason why 'Penn' should be charged with knowledge that 'Spooner's' men might be or actually were working in the shaft-house on Sunday, October 15th. Miller testified that while he was engaged in the welding operation two men in working clothes were in or about the shaft-house. There was testimony to the effect that they were not employees of 'Spooner', and it was not denied that they were employees of 'Penn'. They had access to the building and equipment, and to the tunnels underneath the shaft-house, and one of them from time to time warned Miller and Sharkey of the approach of trains, instructing them to leave the room containing the opening leading to the tunnels. They would then close the door to prevent the entry of backdrafts from passing trains. While there was no testimony to the effect that they were 'Penn' employees the circumstances indicate that they were.
But Miller's action against 'Penn' was not grounded solely on the latter's failure to have the wires de-energized during the course of the installation of the cowl. His chief claim was that 'Penn' had failed to provide him with a safe place to work, and that the place was rendered unsafe by 'Penn's' negligence in permitting dust, dirt and metal particles to accumulate on the insulators and equipment to such an extent as to make possible the arcing or short-circuiting of the electric current, of all of which Miller had no knowledge; further that the resultant dangerous condition could have been prevented if 'Penn' had exercised reasonable and proper precautions.
Fred A. Wahlers, an electrical engineer, testifying in behalf of the plaintiff stated that it was his opinion that the explosion, which occurred in the shaft-house on October 15th, 1950, was the result of a 'flashover of the insulator, which, in electrical terms, means a short circuit, and that results in ...