Chinn v. Ferro-Concrete Construction Co.

Spring, J.: In the summer of 1909 the defendant was engaged in the construction of a large reinforced concrete building on Hart street, in the city of Rochester. The work was carried on by separate gangs of men, each devoted to its specific kind of work. The plaintiff, a young man twenty-seven years of age, was employed with the concrete gang in wheeling concrete and finishing off the floors of that material. The first floor was sixteen feet from the ground, and at the time of the accident most of the false forms used in the process of construction had been removed. There were heavy planks between the girders, each over eighteen feet in length, eight inches wide and two inches thick, which were held in position by supporting shores or posts four inches square resting on the ground, as the concrete floor had not been laid. Concrete had been poured into troughs above these planks and when that had hardened the shores were knocked from under, the braces removed and the planks pried loose with pinch bars and taken down. A wrecking gang had charge generally of the removal of the false work and it was composed of men experienced in that kind of work. Much of the wrecking work had already been done by this gang, but the support was left in the center of each of the heavy planks in one part of the building. On the morning of the accident, Culp, the foreman in general charge of the work on the building, told Chaney to remove these shores and braces and take down the planks, and Adams was directed to assist him. Neither of these men, as the foreman knew, had had any experience in this work, nor did Culp give them any instructions as to the manner of doing it. Culp directed them to take ladders and carry down these planks. A' little later in the forenoon he told the plaintiff to go over and help Chaney, and the latter directed him to knock out the shoring and carry it off. Chaney and Adams went up the ladders, holding up the end of the plank with bars, and the plaintiff knocked out the shoring and carried it and the braces away, and the other two men pried the planks loose and carried them down. Four planks had been removed in this manner. As they were standing on their respective ladders they were obliged to reach above their heads in order to pry loose and. let [371] down this soggy, heavy plank, and it got away from them. The ladders were not steady, as the ground floor was uneven, and, in the effort to save themselves and the plank from falling, they swerved it to one side and it hit the plaintiff, a nail or spike penetrating his skull and causing injuries resulting in the paralysis of one side and epileptic seizures which will be permanent. Culp, the foreman, knew of the manner in which this work was carried on and did not attempt to change the method of its performance. He knew the plaintiff was removing the shores and braces, and knew of the inexperience of Chaney and Adams, and that the plaintiff was one of the concrete gang on this building and had had no experience whatever in the work which he directed him to perform until the day he v/as so frightfully injured by the taking down of this heavy plañir. The plaintiff was obeying the direction of Chaney to remove the shore and braces when the plank fell down and injured him. Ho evidence was offered on the part of the defendant, and the plaintiff made out a prima facie case, and the verdict was not against the weight of evidence. In the first place, the defendant did not furnish a reasonably safe place in the circumstances which the evidence discloses. ■ We appreciate this rule is to he .applied in the light of the fact that this building was in process of construction, and that the business was, to some extent, hazardous, notwithstanding these facts, it was still incumbent upon the defendant to protect its men so far as it bias reasonably able to do so. In the second place, the men employed to do this work were incompetent and inexperienced. The evidence shows that the men who usually did such work consisted of a wrecking gang and were men familiar with the business and the most feasible and safe way of performing it. Chaney and Adams received no instructions from the defendant. It is not a question of rules; it is a question of failure to warn or instruct the plaintiff, and also Chaney and Adams, as to the way in which this work should be performed, which constitutes the negligence of the defendant. Third. The way in which the work was done warranted the jury in finding that the men were incompetent. Chaney was [372] on the ladder so that he was obliged to reach above.his head to take hold of his end of this plank, weighing, about 100 pounds, and it was wet and slippery. Culp, the general superintendent, saw the way in Which this was done and did not interfere. He knew that the work was being done in a dangerous manner, and he should not have allowed it to proceed. (O’Brien v. Buffalo Furnace Co., 183 N. Y. 317; Reilly v. Troy Brick Co., 181 id. 399.) It is not a question of which of two ways is preferable. The jury have found that the method which the defendant permitted to be followed was reckless and careless, and the evidence justified this conclusion. Fourth. The jury had a right to find that the plaintiff was not guilty of contributory negligence. Three or four of the planks had been taken down before this, and in. each instance he had been directed to carry away the props and supports which he had knocked from under the planks. ■ He did this as soon as they fell down, and the foreman knew about that. This necessarily placed him somewhat under the plank," but considerable time elapsed before the plank came down, and he had plenty of opportunity to obey the direction which was given to him. At the time of the accident he was not directly under the plank which fell, and it dropped down suddenly and without any notice or warning to him and veered off to one side and fell upon him. We cannot say, therefore, as matter of law, that he was guilty of contributory negligence. He was engaged in the performance of his duty in the manner in which he had been performing it with the apparent approval of the defendant, and he was hit and injured by reason of the negligent manner in which the work was performed. Fifth. The presiding justice at the trial submitted to the jury in a very general way the question whether the defendant should have promulgated rules to govern the employees in this work. This submission may well be held to have related to the instructions or warning which the jury may have found should have been given to the .plaintiff and his coemployees. The exception to this part of the charge was not specific and did not call the attention of the court to the proposition that it was susceptible to the interpretation by the jury of an inde [373] pendent, distinct statement disconnected from the subject of instructions or warnings with which it was collocated in the main charge. The judgment should be affirmed. All concurred, except McLennan, P. J., who dissented in an opinion, and Williams, J., who dissented upon the ground of excessive verdict.