(110 App. Div. 755.) FALLON v. MERTZ et al. (Supreme Court, Appellate Division, Second Department. January 26, 1906.) 1. EVIDENCE-PRESUMPTIONS-LAWS OF OTHER STATES. Where an accident happened in Connecticut and a resulting action for injuries was brought in the courts of New York and the law of Connecticut was not proved, the common law of New York would govern the disposition of the case. [Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 101.] 2. MASTER AND SERVANT-DUTIES OF MASTER-SAFE APPLIANCES. It is the duty of a master to use reasonable care to furnish a safe derrick to servants engaged in hoisting and lowering blocks of stone into position on a building. [Ed. Note-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 173, 199.] 3. SAME--INJURIES TO SERVANT-NEGLIGENCE OF FELLOW SERVANTS-LIABILITY OF MASTER. Where servants are engaged in hoisting and lowering blocks of stone into position on a building by means of a derrick and are obliged in the progress of the work to shift the derrick from place to place on the building without the aid or supervision of the master, the master is not liable for injuries to one of the servants caused by the negligence of the other servants in moving or setting up the derrick or placing it in an unsafe position. [Ed. Note.--For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 352.] 4. SAME-NEGLIGENCE-RES IPSA LOQuitur. The falling of a derrick set up by servants, which results in injury to another servant raises no presumption of negligence against the master. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 881.] 5. TRIAL INSTRUCTIONS-APPLICABILITY TO THE FACTS. Where the servants are engaged in erecting a building and their places to work on the walls and elsewhere are constantly changing by force of the work itself, a charge on the duty of the master to furnish a safe place to work is inapplicable to the circumstances. Appeal from Trial Term, Westchester County. Action by Thomas Fallon against Louis C. Mertz and others. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed. Argued beore JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. Henry C. Henderson (De Witt H. Lyon, on the brief), for appellants. Michael J. Tierney, for respondent. GAYNOR, J. This action was to recover damages for injuries done to the plaintiff by the fall of a small portable derrick which was being used by him and his fellow workmen in hoisting and lowering blocks of stone into position on a building. All were in the employ of the defendants. The accident happened in the state of Connecticut, and as the law of that state was not proved the common law of this state applies. The plaintiff claimed that the derrick fell because it did not have a proper footblock with sockets for the two legs of the derrick to set 97 N.Y.S.-27 and 131 New York State Reporter in so as to keep them in position, and that in consequence they slipped from their position from the weight of the hoist, causing the derrick to fall. This was the main subject of contention. It was the duty of the defendants, the masters, to use reasonable care to furnish a safe derrick. But the men had to set it up and shift it from place to place on the building as required in the progress of the work, and they had set it up without any participation of the defendants. That was a detail of the work they were employed to do. For the negligence of any of them to the plaintiff in doing it the master was not liable. These are rules too common among us to call for citation of authority. It is therefore plain that the exception to the charge that negligence could be found against the defendants if the derrick fell from not being set up in a safe position presents a radical error; and the same is true of the exception to the charge of the overzealous request of plaintiff's counsel, made after the main charge, that the falling of the derrick alone raised a presumption of negligence in the defendants. The maxim, "The thing speaks for itself," did not apply to the case, for the derrick might have fallen from being set up negligently, or from being used negligently by the plaintiff and his fellow workmen, as the defendants contended, and as the jury might well have found. The learned trial judge also refused to charge at the request of counsel for the defendants (1) that the men using the derrick with the plaintiff were his fellow servants; (2) that if the derrick fell from the negligence of his fellow servants the plaintiff could not recover; (3) that the master is not liable to a servant for the negligence of fellow servants in the performance of acts pertaining to their duties and not to the duties of the master; (4) that to hold the employer liable the burden was on the servant to prove that the apparatus was an unsafe one; (5) that the master is not liable for negligence of a fellow servant in the performance of a detail of the work entrusted to him, which is a work of the servant, although such servant was a foreman or of a higher grade than the injured servant; (6) that the placing of the derrick in position to hoist was a detail of the work, for the negligent doing of which the defendants were not liable. The exception to each of these refusals is vital. The requests were all necessary, for their substance had not been covered by the main charge. It would have been the better and the proper practice if the list of requests to charge had been handed up to the court during the summing up of counsel, at the latest, so that they could have been carefully read by the learned trial judge and each marked refused or granted, and handed back to counsel to read those granted to the jury before the beginning of the charge, or to hold them until after the charge, if the court so permitted, and then only request the charge of any not substantially covered by the charge. The practice of holding such requests until after the charge, and then reading them and having them passed upon, usually distracts and perplexes the jury, and destroys the effect upon them of the main charge. It should not be indulged in. The charge of the duty of a master to furnish a servant with a safe place to work was also erroneous. It was misleading to the jury. It was inapplicable to the case, No place to work was or could be furnished by the defendants. The men were erecting a building, and their places to work on the walls and elsewhere were changing by their own work all the time. The plaintiff was guiding the suspended stone to its place on a chimney when the accident happened, and the derrick stood near by on the roof. There was no question of a safe place to work in the case. The judgment and order are reversed. Judgment and order reversed, and new trial granted; costs to abide the event. All concur. (110 App. Div. 773.) DETVILLER v. ROLLED PLATE METAL CO. et al. (Supreme Court, Appellate Division, Second Department. January 26, 1906.) 1. NEGLIGENCE - INJURIES DEFECTIVE PREMISES-ACTION COMPLAINT. - SUFFICIENCY OF In an action for injuries received by plaintiff through falling down an unguarded elevator shaft, a complaint alleging that defendant was a tenant in possession of the second floor of the premises, but failing to aver that plaintiff met his accident on the second floor, did not state facts sufficient to constitute a cause of action. Appeal from Special Term, Kings County. Action by John Detviller against the Rolled Plate Metal Company and another. From a judgment overruling its demurrer to the complaint, defendant Rolled Plate Metal Company appeals. Reversed. The complaint in the second paragraph alleges that the defendant Wagner owned the "premises" which are then described. In the next numbered paragraph it alleges that the corporate defendant was a tenant in possession "of the second floor of the premises above mentioned," and that while plaintiff was "in said premises, in the act of delivering goods to" the said corporate defendant, he "fell into the elevator shaft in said premises," and down into the cellar, breaking his legs, and receiving other injuries. It then alleges in the next two numbered paragraphs that the accident was caused by the negligence of the defendants and each of them, and alleges the negligence to be that the elevator and shaft were constructed without guards, that the approaches thereto were dark and unguarded, and that they were unprovided with trap doors "and other safety devices required by law and ordinances of the city of New York." Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. George P. Beebe, for appellant. GAYNOR, J. I think the demurrer should have been sustained. The complaint alleges that the corporate defendant, which demurred, was a tenant "of the second floor of the premises above mentioned," the said premises being the whole building and lot, as described in the previous paragraph of the complaint. There is no allegation in the complaint that the plaintiff met his accident on the second floor, and that fact cannot be presumed. The liability of the owner, who and 131 New York State Reporter is the other defendant, may be for the whole building; of this tenant, only for his floor. The judgment is reversed and the demurrer sustained, with leave to plead over. Interlocutory judgment reversed, with costs, and demurrer sustained, with costs. All concur. (110 App. Div. 769.) NEARY v. CITIZENS' R., LIGHT & POWER CO. (Supreme Court, Appellate Division, Second Department. January 26, 1906.) 1. STREET RAILROADS-INJURIES TO PERSON ON TRACK-CONTRIBUTORY NEGLIGENCE. While one has a right to walk along an electric car track on a country highway, he is bound to be ordinarily vigilant with eye and ear to know of the approach of a car, and to get out of its way, so as not to stop it, or even make it slow up. [Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 206.] 2. SAME QUESTION FOR Jury. Where plaintiff's intestate, while walking along an electric car track on a country highway on a clear night, was run over and killed by a car approaching from the rear, fully lighted and with a head light, it could not be said, as a matter of law, that deceased was negligent in not knowing of the approach of the car in view of the facts that no bell was rung or warning given, that electric cars ran over that track about once an hour only, and that at the time of the accident, a freight train was passing on a parallel track about 16 feet from the electric car track, in the opposite direction, laboring up grade, and making much noise. [Ed. Note. For cases in point, see vol. 44, Cent. Dig. Street Rail. roads, 206.] Appeal from Trial Term, Dutchess County. Action by Sarah Neary as administratrix, etc., against the Citizens' Railroad, Light & Power Company. From a judgment for defendant, plaintiff appeals. Reversed. He The plaintiff's intestate was walking along the electric car track on a country highway at 9 o'clock on a clear night, and an electric car fully lighted, and with a head light, came up in his rear, and ran over and killed him. had been there walking while the car was coming several hundred feet, at least. The people generally of that locality walked along the track as he did. The deceased was going toward his home, about 600 feet away. The electric cars passed each way about once an hour. At the place of the accident the tracks of a steam railroad ran along side of the highway, about 16 feet from the trolley track, and at the time of the accident, or the moment before it, a freight train was passing in the opposite direction, laboring up grade, and making much noise. No bell was rung or other warning given on the trolley car. The jury could have found the foregoing facts. Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. A. H. F. Seeger, for appellant. Charles Morschauser, for respondent. GAYNOR, J. The case was for the jury. The deceased had the right to walk along the track, but with that right went by law a duty for him to be ordinarily vigilant with eye and ear to know when a car was coming, and to be out of the way before it got to him, so as not to stop it, or even make it slow up, for it had the right of way. But considering that the electric cars ran only about once an hour, and the distraction of the passing steam freight train along the side of the highway about 16 feet away, it was too much to say as matter of law that the deceased was negligent in not knowing the electric car was coming up so close behind him, especially as no bell was rung or warning given on it. The judgment should be reversed. Judgment reversed, and new trial granted; costs to abide the event. All concur. BERTHELSON v. GABLER. (Supreme Court, Appellate Division, Second Department. January 26, 1906.) 1. MASTER AND SERVANT-NEGLIGENCE-INJURIES TO SERVANT-EMPLOYERS' LIABILITY ACT. Under the express provisions of Laws 1902, p. 1748, c. 600, § 1, subd. 2 (Employers' Liability Act), where a scaffold fell as the result of the removal of a pier under the direction of a person in defendant's service exercising superintendence over the work, an employé injured by reason of the fall was not barred from maintaining an action for his injuries, on the ground that they were the result of negligence on the part of a fellow servant. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 546, 570.] 2. SAME-LABOR LAW-FURNISHING OF APPLIANCES. Under Laws 1897, p. 467, c. 415, § 18 (Labor Law), providing that a person employing labor in the erection, etc., of a building shall not furnish for the performance of such labor unsafe scaffolding, etc. A scaffolding built by a servant and his fellow carpenters, under the direction of the master's superintendent, was one furnished by the master, within the meaning of the section. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 175, 207.] 3. SAME-SAFE APPLIANCES-CONTINUING DUTY. Under Laws 1897, p. 467, c. 415, § 18 (Labor Law), providing that a person employing labor of any kind in the erection of a house, etc., shall not furnish for the performance of the labor, unsafe scaffolding, etc., the obligation of the employer to furnish a safe scaffolding is a continuing one. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, 88 171-177.] 4. SAME QUESTIONS FOR JURY. Under Laws 1897, p. 467, c. 415, § 18 (Labor Law), making it the duty of a master to furnish safe scaffolding for the performance of labor on a building, etc., whether a master complied with such duty was a question of fact for the jury, in an action for injuries to an employé, caused by the falling of a scaffolding. [Ed. Note. For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1024.] |