Waters v. Thompson-Starrett Co.

Bijur, J. Plaintiff showed that he was a bricklayer’s helper employed in wheeling cement which was put in pier holes for building a foundation. He was working under a foreman employed by the defendant who was the contractor on the building. During the course of the day a number of iron beams about twenty-five feet long, six inches wide and eighteen inches high, weighing from 800 to 1,200 pounds, had been placed in such position that they obstructed the gangway used by plaintiff and his fellow workmen. They had been lowered and placed in this position by an adjacent derrick. Plaintiff’s foreman called his gang together to move these beams in a hurry. They were lying close together. The men pushed the beams lengthwise out of their way. In pushing one of them, it toppled over, and plaintiff’s thumb was caught between that beam and the one against which it fell, causing the injury of which he complains. The action was brought under the Employers’ Liability Act. The testimony of an. inexperienced iron worker was given, without objection, to the effect that in handling such beams, experienced iron workers should be employed, and that they should be moved either with a derrick or on rollers and with a bar. On this state of facts, even without according to plaintiff the favorable inferences to which, on a motion to dismiss, his testimony is entitled, it seems to me that the questions should have been submitted to the jury whether the foreman had not acted negligently in directing this work to be done in an unsafe manner [448] by inexperienced men without warning or instructions, and whether this was not an act of superintendence on the part of an employee “ intrusted with and exercising superintendence whose sole or principal duty is that of superintendence ” as described in the Labor Law, section 200. Lopisi v. Degnon Cons. Co., 76 Misc. Rep. 279; Tribastoni v. Rodgers & Hagerty, Inc., 72 id. 77. The respondent cites in support of the judgment Ozogar v. Pierce, Butler & P. Mfg. Co., 134 App. Div. 800, in which the court holds that changing the position of a heavy iron casting weighing some 1,300 pounds was a simple act that required no apparatus, but that, in any event, the evidence that the casting had been or that such castings were usually moved by a derrick in the establishment was immaterial in view of the fact that the necessity for changing its position at the time of the accident was due to the need of getting it through a door to an elevator where a derrick would not have been available. This case is distinguishable in a marked degree from the one at bar where the evidence was that the very operation which caused the accident was usually performed with the apparatus named, and could not safely be performed otherwise. Seabtjry and GfuY, JJ., concur. Judgment reversed and new trial granted, with costs to appellant to abide event.