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August 13, 1969

Walter HUMPHRIES, plaintiff,
CONSOLIDATED EDISON COMPANY OF NEW YORK, Inc., Defendant and Third-Party plaintiff, v. J. LIVINGSTON & COMPANY and Eberhart Construction Company, Inc., Third-Party Defendants

The opinion of the court was delivered by: BONSAL

This diversity personal injury action was tried by the court without a jury. plaintiff Walter Humphries an employee of third-party defendant J. Livingston & Company (Livingston), an electrical contractor, sued defendant Consolidated Edison Company of New York, Inc. (Con Ed) for damages for personal injuries allegedly sustained on April 9, 1965 at Con Ed's plant at East 40th Street and First Avenue, New York City, when he came into contact with an uninsulated electrical outlet on a fluorescent light fixture and received a shock which caused him to fall off the ladder on which he was working, seriously injuring his left foot. Con Ed sued Livingston for indemnity for any judgment that plaintiff may obtain against it. (Con Ed also sued Eberhart Construction Company, Inc. for indemnity but this action was discontinued by stipulation during the trial.)

plaintiff testified that he had been an electrician for some 20 years and had been working for Livingston at the Con Ed plant since October, 1964. On April 9, 1965, the day of the accident, plaintiff was assigned to work under his 'straw boss,' Weiner, in a part of the plant known as 'West Gallery, Third Floor, Section 7,' to splice the bus ducts and bus bars being installed in the ceiling, which required the use of a stepladder. Difficulty was being experienced in the splicing operation, and prior to the accident both plaintiff and Weiner used the stepladder to inspect the bus ducts to determine the cause of the difficulty. plaintiff then went up on the stepladder to align the holes in the bus duct so that they could be fitted with bolts, when his left arm came into contact with a live broken electrical outlet consisting of two prongs on a fluorescent light fixture, and the shock caused him to fall off the ladder, resulting in the injuries here complained of. Immediately after the accident, Herd, a Con Ed Employee, tested the broken outlet and ascertained that it was live. plaintiff testified that he had observed the prongs prior to the accident but did not test them because his job did not involve working on the light fixture and he assumed that Con Ed had taken proper safety precautions.

Herd, the electrical inspector for Con Ed, acknowledged that he observed the unprotected prongs the day before the accident, and testified that he took protective measures by taping the switch controlling the light fixture and placing a sign on the switch that it should not be turned on. Herd also testified that he had discussed the matter with Weiner and Duffy, Livingston's general foreman, both of whom denied that any such conversation took place.

 From Herd's testimony, it is clear that Con Ed was no notice of the dangerous condition which caused plaintiff's injury. Moreover, even if his testimony with regard to the protective measures taken is to be believed, Herd failed to take proper measures to deactivate the prongs, which as an electrician, he should have known could have been done by taping the prongs or deactivating the outlet at the control box. Furthermore, if Herd did tape the switch and place the sign, this protection could only have been removed by Con Ed employees or by such of Livingston's employees who were permitted access to the room by Con Ed. There is no evidence that the protection was removed. Moreover, Weiner and Duffy denied that they saw such a sign.

 The evidence at the trial conclusively demonstrates that Con Ed was in control of the work area, that it had notice of the dangerous condition caused by the broken outlet, and that it failed to take proper measures for the protection of plaintiff and his fellow employees. The court accepts plaintiff's testimony that the electric shock caused him to fall off the ladder injuring his foot, so that Con Ed's negligence was the proximate cause of his accident.

 Contributory Negligence

 plaintiff had the burden of showing that he was free of contributory negligence. Con Ed contends that he was contributorily negligent as a matter of law since he was an experienced electrician, had observed the prongs, and failed to test them, relying on Seidman v. M & R Air Conditioning Corp., 15 N.Y.2d 814, 257 N.Y.S.2d 935, 205 N.E.2d 859 (1965), Nucci v. Warshaw Construction Corp., 12 N.Y.2d 16, 234 N.Y.S.2d 196, 186 N.E.2d 401 (1962), McAllister v. New York City Housing Authority, 9 N.Y.2d 568, 216 N.Y.S.2d 77, 175 N.E.2d 449 (1961), Avery v. Order of St. Basil the Great, 27 A.D.2d 481, 280 N.Y.S.2d 171 (3d Dept. 1967), Townes v. Park Motor Sales, Inc., 7 A.D.2d 109, 180 N.Y.S.2d 553 (1st Dept. 1958), aff'd. 7 N.Y.2d 767, 194 N.Y.S.2d 37, 163 N.E.2d 142 (1959), and Utica Mutual Insurance Co. v. Amsterdam Color Works, 284 App.Div. 376, 131 N.Y.S.2d 782 (1st Dept. 1954), aff'd, 308 N.Y. 816, 125 N.E.2d 871 (1955).

 On the other hand, plaintiff contends that the evidence shows that he was free from contributory negligence, for the reason that the broken outlet was not related to the work he was doing on the bus ducts, and that he was entitled to assume that Con Ed had provided him with a safe place to work.

 Unless plaintiff was contributorily negligent as a matter of law, the issue is one to be determined by the trier of fact. Person v. Cauldwell-Wingate Co., 187 F.2d 832 (2d Cir. 1951), cert. denied, 341 U.S. 936, 71 S. Ct. 855, 95 L. Ed. 1364 (1951); Perrone v. Pennsylvania R. Co., 136 F.2d 941 (2d Cir. 1943).

 The cases cited by Con Ed do not establish that plaintiff was contributorily negligent as a matter of law. They involve situations where the plaintiff was aware of a potential hazard in connection with the work which he was doing, despite which he took no steps to determine whether the hazard existed. Moreover, in none of the cases except McAllister was the defendant in control of the premises where the accident occurred. Person v. Cauldwell-Wingate Co., supra, and Perrone v. Pennsylvania R. Co., supra, involved fact situations more closely resembling the present case than the cases cited by defendant, and in both it was held that the issue of contributory negligence was for the trier of fact.

 The uninsulated outlet which shocked plaintiff had nothing to do with his work, and his contact with it was accidental. The court finds that under the circumstances it was not unreasonable for plaintiff to assume that Con Ed, being in control of the premises, would have provided him with a safe place to work. plaintiff has proved by a preponderance of the evidence that he was not contributorily negligent. *fn1"


 Dr. Ernest Stich, an orthopedic surgeon, testified that he was plaintiff's treating surgeon, beginning the day following plaintiff's accident. He testified that plaintiff suffered a comminuted fracture of the os calcis, in other words a shattered heel bone, which was caused by his fall, and that his injury, involving loss of motion of his foot, deformity of his foot, discomfort, and pain, was permanent. He testified to various operations he had performed on plaintiff and said that plaintiff may have re-occurrences of calcium growth, necessitating further operations, and that plaintiff's injuries make him more susceptible to arthritic changes.

 The testimony establishes that Humphries is suffering from a permanent injury which causes pain and suffering, particularly during changes of the weather of when he uses his foot too much. Moreover, he walks with a ...

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