Caspersen v. La Sala Bros.

Cardozo, Ch. J. Plaintiff, a servant of the Otis Elevator Company, was installing an elevator in a building then in course of construction. Beside the elevator well was a shaft for a stairway. The shaft was not visible, however, on the ground floor where the plaintiff was at work, except by lifting up one’s eyes and looking to the floors above. There was nothing to mark its presence to the casual observer. Far up in the shaft, on the t nth or eleventh floor, masons, working on a scaffold, were using tiles and bricks. One of the bricks, falling from the scaffold, struck the plaintiff on the head while he stood beneath the shaft, intent upon his work. In this action for damages, two defendants have been joined. One, La Sala Brothers, Incorporated, a subcontractor for the mason work, was the employer of the bricklayers. The other, Omaha Realty Company, Incorporated, the owner of the building, was in substance a general contractor, maintaining general supervision through a superintendent on the scene. Evidence was excluded that bricks had fallen down the shaftway on previous occasions. Evidence was excluded also that protective devices such as screens or warning signs were customary safeguards. *494 There was a verdict against the subcontractor, and a dismissal of the complaint against the owner. From the affirmance of the dismissal, this appeal has been allowed. We think the owner of the building, acting as general contractor, was under a duty to the plaintiff to use reasonable care in maintaining the approaches to the elevator in a condition of reasonable safety, and is answerable in damages if the duty was ignored. Liability is not defeated by the fact that the plaintiff was a servant of a subcontractor, and not a servant of the owner. He had come into the building in furtherance of the owner’s business, and was using ways and approaches necessary or suitable to enable him to go forward with his work. In such circumstances the duty of protection is independent of the relation of servant and employer. This was so at common law (Coughtry v. Globe Woolen Co., 56 N. Y. 124.) It is so to-day under the statute (Employers’ Liability Law [Laws of 1921, ch. 121], § 2; Cons. Laws, ch. 74; Labor Law, § 200; Cons. Laws, ch. 31: Hess v. Bernheimer & Schwartz Brewing Co., 219 N. Y. 415, 418). “ If an employer enters into a contract, written or verbal, with an independent contractor to do part of such employer’s work, or if such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor’s contract with the employer, such contract or subcontract shall not bar the liability of the employer for the injuries to the employees of such contractor or subcontractor, caused by any defect in the condition of the ways, works, machinery, or plant, if they are the property of the employer or are furnished by him, and if such defect arose, or had not been discovered or remedied, through the negligence of the employer, or of some person intrusted by him with the duty of seeing that they were in proper condition ” (Employers’ Liability Law, supra). The defendant is not chargeable with the negligence of the *495 masons, the servants of the subcontractor. It is chargeable with its own negligence in fa Ing to guard the ways against perils unknown to the worker. The precedents are decisive (DeLee v. Pardy Constr. Co., 249 N. Y. 103; Mortensen v. Magoba Constr. Co., 248 N. Y. 577; Flanagan v. Ley & Co., 241 N. Y. 607; McNamara v. Eastman Kodak Co., 220 N. Y. 180, 183; Hess v. B. & S. B. Co., supra; Garland v. Townsend, 217 Mass. 297). We are not unmindful of the fact that dangers must often be tolerated in a building in process of erection, though needless and so intolerable if permitted in the finished structure. Very often they are obvious, and, if not obvious, inevitable. In the striving after safety, owner or contractor is not required to go beyond the bounds of what is practicable and reasonable (Murphy v. Altman, 28 App. Div. 472, 474; Doremus v. Auerbach, 176 App. Div. 512, 516; 223 N. Y. 709). This does not mean, however, that there will be enjoyment of a like immunity where the dangers are obscure to the worker and easily corrected. Reasonable men might not unreasonably say that it was a peril of this order that laid the plaintiff low. We think there was error in the dismissal of the complaint. We think there was error also in the exclusion of testimony affecting the measure of the risk and the means available to avoid it. The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted with costs to abide the event. Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur; Lehman, J., not sitting. Judgments reversed, etc.