The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
After listening to extended argument and giving careful consideration to the briefs and authorities that have been submitted by the parties, all of which have been reviewed by the Court, the Court is prepared at this time to rule on the defendants' motions to dismiss.
Ordinarily, where there are issues of fact to be decided, the Court leaves these for decision by the jury. In this case, however, after carefully reviewing the notes of the trial and having portions of the transcript read back by the court reporter in the robing room, the Court has reached the conclusion that even if the facts are considered in the light most favorable to the plaintiff and all favorable inferences that could be drawn from those facts favorably to the plaintiff are drawn, the Court must grant the motions to dismiss made by all three defendants for the reason that there is insufficient evidence here to make out a prima facie case or to establish a claim legally against any of the defendants.
Since the Court is required under Rule 41 of the Federal Rules to make findings in accordance with Rule 52(a) of the Federal Rules, I will proceed to make the findings.
There is no question about the fact that this is a diversity suit for personal injuries sustained by the plaintiff on December 31, 1963, as the result of slipping and falling on ice in a stairwell near the site of the New York State Theatre as it was in the course of being constructed. The plaintiff is a resident of New Jersey and the defendants are all residents of New York.
There appears to be no dispute about the fact that on December 31, 1963, the plaintiff slipped and fell on ice on the stairway of a stairwell leading from an underground garage to a point on Columbus Avenue between 62nd and 63rd Streets in New York City.
At the time of the accident, according to the plaintiff's testimony, which was corroborated by the testimony of Mr. Faraci, the stairway, the construction of which had not been completed, was covered with an accumulation of ice and the accident resulted from his slipping on the ice.
The plaintiff claims that the accident was caused by negligence on the part of the City of New York, which had contracted with the Slattery Construction Corp. to build the stairway and stairwell.
He also claims negligence on the part of Slattery, the contracting concern, which was engaged at the time of the accident in constructing the stairway and well and the adjacent underground garage, pursuant to its contract with the City of New York.
More specifically, the plaintiff claims that these defendants were negligent in permitting accumulation of ice and snow, in not removing it, and in failing to warn the plaintiff of its existence, and in failing to affix adequate handrails on the stairway and platforms.
The plaintiff also claims that the accident resulted from the failure of the defendant, Turner Construction Co., which was the general contractor in charge of the construction of the New York State Theatre, to provide him, as an employee of an electrical subcontractor on that job, with a safe place in which to work. More specifically, the plaintiff contends that the defendant violated Section 200 of the Labor Law of the State of New York, McKinney's Consol. Laws, c. 31, by failure to provide him with a safe ingress to and egress from the New York State Theatre work site.
There appears to be no dispute about the fact that the obligations of the defendants toward the plaintiff are governed by New York law.
Turning to the proof and considering it in the light most favorable to the plaintiff and drawing all inferences that can reasonably be drawn in favor of the plaintiff, the record reveals that the plaintiff testified that at the time of the accident and for about a year and a half prior thereto he had been employed by John G. Hellman Co., Inc., an electrical subcontractor engaged in doing electrical work in the construction of the New York State Theatre pursuant to a contract with Turner Construction Company as the general contractor on that job.
Plaintiff had, for this year and a half period, worked as an electrician on that job. Hellman provided lockers and shanties to the plaintiff and its other electrical employees for changing their clothes and storing their tools. These lockers were not located, however, in the New York State Theatre. They were located in an underground garage area adjacent to the New York State Theatre, which garage was that already referred to as being constructed by the defendant Slattery pursuant to its contract with the City of New York.
The plaintiff testified that on December 31, 1963, the electrical work force employed by Hellman on electrical work on the construction of the theatre was permitted to knock off early because of the impending holiday. This testimony was corroborated by that of a fellow worker, Mr. Joseph Faraci.
The plaintiff also testified that about 2:30 p.m., upon completion of his electrical work in the theatre building, he went to the locker space in the underground garage to change his clothes and depart for his home in New Jersey. The lockers, which were in the underground garage adjacent to the theatre, were reached by an underground passageway or corridor from the New York State Theatre.
After changing from his work clothes to street clothes at the lockers, the plaintiff, who was homeward bound, headed for the 8th Avenue subway station located near 59th Street and Columbus Avenue. The most direct and quickest route was by way of the stairwell where the accident occurred. The bottom of that stairwell was located off an underground corridor that extended from the locker area. The plaintiff walked from the lockers along the corridor to the point where these stairs emerged and rose in an uncovered stairwell to Columbus Avenue. The stairs had ice on them. There were about nine steps from the underground garage to an intermediate level or platform and then another eight or nine steps to the street level.
The masonry work on the steps had not been completed and handrails had not yet been installed. The plaintiff started walking up the steps and as he reached the intermediate platform level he fell and sustained a fracture of the skull and other injuries.
The plaintiff testified that prior to the time of the accident he was familiar with the icy condition of the stairs, he knew that there were no handrails, he knew that when he went up the icy stairs he took the risk of slipping and falling, he knew that there were other routes that were protected from ice, snow and elements, but that he took this route because it was a shortcut that ...