Monahan v. Eidlitz

Sewell, J.: This action was brought to recover damages for the death of plaintiff’s intestate, which it is alleged was caused by the negligence of the defendants. The deceased was a laborer, and for several years prior to the 14th day of December, 1899, when the accident occurred, had been in the employ of Mulry & Son, and on that day was keeping the time of their workmen in the basement of a building in the process of erection on the west side of Washington street in the borough of Manhattan. The defendants were the builders, and Mulry & Son were employed by them. The whole work was under the general supervision of one Shafter, the foreman of the defendants, who gave directions to Connolly, the foreman of Mulry & Son, who then instructed their employees. Mitchell, the individual charged with the act or acts which caused the death of plaintiff’s intestate, was in the employ of the defendants, and on the day in question was directed to carry a mortar or cement tub up a ladder to a scaffold above where the plaintiff’s intestate was at work. The tub weighecl from fifty to sixty pounds, and Mitchell was charged by a fellow-workman, while on his way to the ladder, to be “ very careful.” The foot of the ladder was not secured, and the top rested against a swinging scaffold or platform. As Mitchell reached the top, carry [226] ing the tnb upon his right shoulder, it came in contact with an iron girder or projecting brickwork, and coincident with- the collision the bottom of the ladder slipped several feet and the tub fell upon and killed the plaintiff’s intestate. At the close of plaintiff’s evidence the defendant moved to dismiss the complaint on the ground that no negligence had been shown on the part of the defendant, and the court granted the motion. There is no question upon the evidence in this case respecting the negligence of fellow-servants, as the deceased and the person who caused the accident were servants of different masters, and consequently not coservants. (Johnson v. Netherlands American S. N Co., 132 N. Y. 576; Butler v. Townsend, 126 id. 105; Sanford v. Standard Oil Co., 118 id. 571.) Neither is there any question respecting the absence of contributory negligence, as it appears by the evidence that the decedent was where he had a right to be, and had no reason to expect that the tub would fall upon his head. The only question, therefore, presented by this appeal is whether the jury would have been justified in finding that the defendants’ servant was negligent. The burden was upon the plaintiff to make it appear so, and if from the evidence men of ordinary prudence and discretion might differ as to the character of his acts, or if the inference to be drawn from, or the significance to be attached to,, the testimony is doubtful, the question is one of fact for the jury. (Hays v. Miller, 70 N. Y. 112; Nolan v. Brooklyn City & Newtown R. R. Co., 87 id. 63.) About the facts there was neither dispute nor contention, and' the inquiry, therefore, is whether, measuring them by this rule, a question was raised which ought to have been, submitted to the jury. We think the evidence on the part of the plaintiff and the inferences fairly deducible from it permitted the conclusion that the accident was caused by the negligence of the defendants’ servant in ascending, with a heavy burden, a ladder placed and supported as this one appears to have been, and in permitting the tub to collide with the girder or projecting brickwork with so much force as to cause the ladder to slip or to knock the tub from his shoulder. It matters not whether the collision with the girder or other-obstacle forced the tub from Mitchell’s shoulder or whether he [227] dropped it involuntarily under the influence of pressing danger, as claimed by the respondents; for in either event the jury might very reasonably have concluded that the fall was the proximate consequence of Mitchell’s failure to exercise proper care in ascending the ladder, or to avoid contact with the girder above him, or of both of said causes. If the intervening agency of another, acting under his best judgment, will not relieve a defendant charged with the original act of negligence (Lowery v. Manhattan R. Co., 99 N. Y. 158), much less would an involuntary act of the defendants’ servant relieve them from the consequence of. an injury caused by his negligence. In all cases where the defendant has been held exempt, it appeared that the involuntary act causing the injury was in no sense traceable to his wrongful or negligent conduct. We do not think it can be said in any just sense that the fall of the tub was the proximate cause of the injury. A proximate cause is the efficient cause, and one that necessarily sets the other causes in operation. It is not always the cause nearest in time and place to the accident, for that is sometimes merely incidental to a superior or controlling agency. It is only when causes are independent of each other that the nearer is, of course, to be charged with the disaster. (The G. R. Booth, 171 U. S. 450.) From the facts established by the evidence, and from the circumstances surrounding the occasion, it appears that the efficient, and, therefore, proximate, cause of the death of plaintiff’s intestate, was the act of Mitchell in ascending the ladder and permitting the tub to collide with the girder or brickwork, which it may be assumed caused the ladder to slip and the tub to fall upon and kill the plaintiff’s intestate, as there is no reason to suppose or believe that without the operation of this cause the' accident would have occurred. However this might be, it cannot be said that such a conclusion is destitute of justification, or that the jury would not have drawn that inference. We think, therefore, that the dismissal of'the complaint was error, for which the judgment must be reversed and a new trial granted, costs to abide the event. All concurred, except Woodward, J., who read for affirmance. '