Anderson v. McNulty Bros.

Hirschberg, J.: The action is to recover damages for personal injuries. The plaintiff, an ironworker, was seriously injured on April 15, 1910, while working in an elevator shaft in a building then in process of erection at 123 William street, in the borough of Manhattan. He was employed by the defendant Winslow Brothers Company, a corporation having the contract for certain parts of the iron work in the building. The appellant, McNulty Brothers, had the contract for a certain portion of the plaster work. The defendant Thompson-Starrett Company was the general contractor. At the time of the accident the plaintiff was working on a scaffold at the sixth floor, .in one of the elevator shafts. The accident was caused by a joist or piece of timber falling from some point in the shaft above that scaffold and striking and breaking one of its outriggers, thereby precipitating the plaintiff down the shaft. The complaint was dismissed as to the Thompson-Starrett Company, and the case [737] was submitted to the jury on the plaintiff’s claim against the other two defendants. The jury returned a verdict in favor of the Winslow Brothers Company and found against McNulty Brothers. The appellant raises the preliminary objection that the complaint fails to state facts sufficient to constitute a cause of action against it, in that it only avers a legal conclusion of negligence. The complaint alleges that the appellant McNulty Brothers is and was a domestic corporation engaged at the time in the performance of certain plastering work in said building, and that while the plaintiff was working in the elevator shaft in said building “the scaffold or planking on which he was standing was struck violently by a heavy wooden joist that was allowed to and did drop down and through said elevator shaft from above the plaintiff and from about the tenth floor of said building, through and by reason of the fault, carelessness and negligence of the defendants, their agents, servants and employees,” thereby causing the scaffolding to give way and precipitating the plaintiff down the shaft. The pleader has alleged the specific fact upon which the appellant’s negligence is predicated, namely, the dropping of the joist down the shaft, and has stated generally that the dropping of the joist was due to the negligence of the appellant, its agents, servants arid employees. Such a pleading clearly states sufficient facts to constitute a cause of action against the appellant. (Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310; Roblee v. Town of Indian Lake, 11 App. Div. 435; Pagnillo v. Mack Paving & Const. Co., 142 id. 491.) The Pagnillo Case (supra), relied upon by the appellant, does not sustain its contention. There the complaint merely contained a general allegation of negligence, without stating any facts upon which said negligence was based, or which resulted from the negligence, and caused the injury complained of. The case, however, correctly states the rule that the complaint is sufficient if it states the act or omission causing the injury, with a general allegation that such act or omission was due to the defendant’s negligence. In Fahr v. Manhattan R. Co. (9 Misc. Rep. 57), also relied upon by the [738] appellant, the allegations of the complaint affirmatively established contributory negligence. In cases such as the one at bar it is well settled that there must be sufficient evidence of negligence, independent of the presumption caused by the falling of the object, to identify the wrongdoer. (Wolf v. American Tract Society, 164 N. Y. 30.) I think there was sufficient evidence in this instance to sustain the finding of the jury that the falling of the joist was caused by the appellant’s employees. At the time of the accident there were two scaffolds in the elevator shaft above the scaffold on which the plaintiff was working. One was on the eighth floor and was being used by two employees of the plaintiff’s employer, Winslow Brothers Company. It was directly above the plaintiff, but was not large enough to completely cover his scaffold. The other scaffold was on the tenth floor and had been used by the appellant’s employees in connection with the plastering. It completely covered the shaft and was constructed of planks placed closely together, resting upon two joists. These joists were four by four and about nine feet long, and had a cleat at each end by which they were attached to I-beams on either side of the shaft. This scaffold was being removed at the time of the accident, pursuant to directions given by appellant’s foreman in charge of the plasterers. The joist which caused the accident was identified as similar to those used in this scaffold, and was found after the accident with planking and the plaintiff’s body in the shaft. The scaffold itself had disappeared, although it was observed before the accident. These joists do not appear to have been used in this shaft by any one except the appellant and its employees. I think there was sufficient testimony to warrant the jury in finding that the joist which struck the plaintiff’s scaffold was one of the joists that had been used in the appellant’s scaffold. Such finding placed the burden upon appellant of showing that it had not been guilty of negligence in connection with the fall of the joist. (O’Rourke v. Waite Co., 125 App. Div. 825.) The plaintiff was not guilty of contributory negligence as matter of law, in neglecting to build a cover over his scaffold. The testimony shows that there was no regular custom in this [739] respect but that the matter was left to the judgment of the men. At the time of the accident the plasterers were engaged merely in removing their scaffold. The small scaffold used by the other ironworkers on the eighth floor was directly over the plaintiff’s head, although it did not cover the outriggers of his scaffold. In the circumstances it was for the jury to determine whether the plaintiff’s failure to completely cover his scaffold constituted contributory negligence. The judgment and order should be affirmed. Present—Jenks. P, J., Hirschberg, Thomas, Carr and Rich, JJ. Judgment and order unanimously affirmed, with costs.