Ferrick v. . Eidlitz

Hiscock, J. The construction by the fall of which plaintiff was injured while engaged in its removal was placed in position by contractors other than the defendants. Its primary and principal purpose was to serve as a rooting for the protection of dynamos from dust and other falling substances incidental to the erection of a new building. The structure was of a very simple character. Plaintiff and his fellow-workmen had been engaged in its removal for some time when the accident happened and his evidence makes it uncertain whether there was a general collapse of that portion of the structure which remained or whether three or four boards fell. The Appellate Division seem to have held that he was entitled to have his case submitted to the jury either on the theory that this was a case for the application of the doctrine of res ipsa loquitur excusing him from pointing out any spe *252 eific negligence on the part of the defendants, or on the theory that the defective joist caused the fall and that the jury might have said that the defendants’ superintendent was negligent in putting the plaintiff at work upon a structure wherein was located such defective piece. In our opinion, he was not entitled to have his case submitted to the jury on either of these theories. The doctrine of res ipsa loquitur is not applicable. One of the elementary conditions under which that doctrine may be applied is that the failure of a structure or appliance, as in this case of the rooting, shall occur under such circumstances as, tested by ordinary experience and observation, fairly create the presumption in the absence of explanation that the person sought to be charged has failed to fulfill some obligation which he owed to the person injured and which if discharged would have prevented the accident. (Griffen v. Manice, 166 N. Y. 188; Henson v. Lehigh Valley R. R. Co., 194 N. Y. 205; 87 N. E. Rep. 85.) The falling of the roofing does not under the particular circumstances here presented create any presumption that the defendants had violated some duty which they owed to the plaintiff. While it is true that this roofing had at times been used as a floor or even as a scaffold by workmen, that was not at all its nature as to plaintiff. He was not placed at work upon it as a scaffold, but his employment consisted simply in removing it and getting it out of the way. Therefore, its collapse, if that was the case, is not to be measured by any rules, statutory or otherwise, applicable to the construction and strength and safety of scaffolds, and plaintiff’s rights are not measured by those general rules which relate to the furnishing by an employer to his employees of a safe place in which to work. We shall assume that the defendants owed plaintiff a duty not to place him at work in the removal of this roofing if such work involved hidden and unusual dangers without at least warning him of them. But the structure itself was of the simplest and most obvious kind, and in addition to this plaintiff especially calls to our attention the alleged warn *253 ing of defendants’ foreman that it was not a strong one and that care must be exercised in its removal. Under such circumstances if plaintiff had been injured while engaged in its removal without any evidence of specific or unusual defects or dangers, we do not think it could be said at all that the falling of the unfastened boards or the slipping of the unfastened ends of the joists from the flanges of the girders perfectly open to the view of the plaintiff was such an unusual event in the course of removal as to create a presumption that defendants had failed to discharge the duty of reasonable care and caution which they owed to the plaintiff. As has been said in substance in other cases, these defendants owed the plaintiff only the duty of ordinary care and caution, and the mere fall of such a structure as this was in the process of removal is not so strange or unusal as to create a presumption of negligence. (Henson v. Lehigh Valley R. R. Co., supra; Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380.) Therefore, the plaintiff is limited to his claim that there was a special defect and a hidden danger involved in the work which he was doing of which the defendants should have known and against which they should have warned him, and that in the failure to do this their foreman was negligent within the Employers’ Liability Act so that an action may be maintained. This argument is based on the defective and partly severed joist. We do not think, however, that defendants, either-under the Employers’ Liability Act or under the principles of common law, are to be charged with negligence with respect to this joist. There is no claim that they cut it. The speculation rather than the evidence is that it was cut by some steamfitter for the purpose of placing a pipe, but this speculation is opposed by the absence of any evidence that the board above the joist had been cut as would be necessary for placing the pipe, and, furthermore, there seems to have been no occasion for placing a pipe at this place. There is no evidence that the cut might not have been made immediately prior to the accident. Therefore, this particular contention *254 of plaintiff resolves itself into the proposition that it was the duty of defendants’ foreman, before placing him at work in the removal of the boards and joists, to have made an examination for the purpose of seeing whether somebody had done something which would weaken the structure. In the absence of some fact which charged the defendants or their representatives with notice or knowledge that this was necessary, we do not think that ordinary care and caution which limited their obligation towards their employees compelled them to take any such unusual precautions, and that this alleged ground of negligence was not established. The order and judgment of the Appellate Division should be reversed and the judgment of the trial court affirmed, with costs to the appellants in both courts. Chllen, Ch. J., Gray, Edward T. Bartlett, Haight, Vann and Werner, JJ., concur. Order and judgment reversed, etc.