Derdiarian v. Felix Contracting Corp.

—In a negligence action to recover damages for personal injuries, etc., defendants Felix Contracting Corp. and Consolidated Edison Company of New York separately appeal from stated portions of an interlocutory judgment of the Supreme Court, Queens County, entered January 13, 1978, which, inter alia, is in favor of plaintiffs and against said defendants, upon a jury verdict after a trial limited to the issue of liability only. Defendant Felix Contracting Corp., also appeals from an order of the same court, dated December 13, 1977, which granted plaintiffs’ motion to increase the ad damnum clause from $2,000,000 to $3,300,000. Interlocutory judgment affirmed insofar as appealed from and order affirmed, with one bill of costs payable jointly by appellants. The 48-year-old plaintiff husband (hereafter plaintiff) was seriously injured at a work site in Mount Vernon when his face, head and body were splattered and set aflame by a kettle of hot (400 degree) tar which was struck by an automobile driven by defendant James Dickens that was out of control. Dickens had sustained an epileptic seizure 874 and blacked out. Plaintiff was employed as a foreman by Bayside Pipe Coaters; a subcontractor engaged by the general contractor Felix Contracting Corp. (Felix), to seal a 20-inch high pressure gas main that was being installed underground in Mount Vernon pursuant to a contract between Felix and Consolidated Edison Company of New York (Con Edison). The accident occurred about 2:00 p.m. on November 21, 1973 on Oak Street when, according to plaintiff, he was walking from his truck, parked adjacent to the excavation, towards a restaurant on the southeast side of the street. Plaintiff testified that he had parked his one-ton Chevrolet pickup truck parallel to the curb, adjacent to the west side of the excavation, at the direction of Felix’ foreman at the site. Consequently, the kettle of tar, which was heated by the torch head of a compression tank filled with kerosene, was set by plaintiff on wire milk baskets in line with the tailgate of the truck near the south curbline. Plaintiff said that he asked for the truck to be situated on the east side of the excavation. At the site of the accident, Oak Street runs east and west between North Bleeker (west) and North Bond Street (east). Oak Street is 30 feet wide and has two lanes of traffic, one in each direction. The excavation, some 12 feet measured north-south and 15 feet measured east-west, was located in the eastbound lane, about 70 feet east of Bleeker, a foot south of the center line of the street and about two feet from the curb. Felix argues that any finding of negligence was obviated as a matter of law by its proof that a workman had placed two barricades (A-frame "horses”) along the west side of Oak Street at North Bleeker, blocking the eastbound lane, and six or seven barricades along the mid-line of Oak Street beside the hole and that, in addition, there was a flagman. Felix maintains that it had done everything necessary and customary to ensure safety for excavation work of this type at such a site. It contends that the out-of-control vehicle was an unforseeable event and that the automobile could not have been prevented from entering the work area by any type of barrier nor protected against by any series of warnings by flagmen to workers. In our view, permitting the jury to determine the issue of Felix’ negligence was not error. Given the hazards to men .working in a hole near 400-degree tar, it was a question of fact—on which the experts differed—whether Felix’ safety measures were so inadequate as to be negligent and whether such negligence was a substantial factor in bringing about the harm (see Lopes v Adams, 37 AD2d 610, affd 30 NY2d 499). Plaintiff’s engineering expert testified that there is a difference between a barricade and a barrier and that good practice called for a barrier to be placed across the entire width of the excavation to protect workmen from out-of-control cars. A barrier, the expert said, is "a truck or a piece of heavy equipment which will stop a vehicle from penetrating the work zone * * * required when you have a special hazard.” A barricade will not stop any vehicle but merely "channelize traffic or * * * outline the work zone”. The expert also testified that two flagmen were necessary and that there should have been advance warning signs. Defendant Felix’ expert engineer distinguished a barricade in the same way. He was of the opinion, however, that warning signs were not necessary, that a single flagman was adequate because the traffic signal served as a second flagman and that placement of two pieces of equipment to block Oak Street at the excavation site was not required practice. On one critical point, there was no disagreement. The one-ton Chevrolet pickup truck was available for use as a barrier across the eastbound lane if it had been parked in a north-south direction. Moreover, the expert testified that "If there happens to be a vehicle or a piece of equipment * * * available, it is prudent practice to make use of it in that 875 vein”. Clearly, there were fact issues here which were most appropriate for a jury to decide. Felix also urges that the sections of the city’s ordinances that were read to the jury were inapplicable and it was, therefore, prejudiced by the instructions. It argues that the requirement that the permittee "shall erect and maintain suitable barricades and fences around all of his work while excavation or other work is in progress and shall arrange his work [to cause minimum delay and inconvenience] to vehicular and pedestrian traffic” (Mount Vernon Building Code, Department of Public Works, § 38-24) is designed for pedestrian protection and the flow of traffic. Felix relies on Sarconi v 122 W. 26th St. Corp. (241 NY 340), where it was held that it was prejudicial error to let the jury consider a rule respecting the operation of a passenger elevator where the plaintiff was injured in a freight elevator. The ordinance requiring the erection and maintenance of suitable barricades did not, however, demand any more of defendant Felix than it was already obligated to do, whereas in Sarconi the requirement for the two types of elevators were very different. Felix did not suggest, after all, that it was not required to put up any barricades or that those it had put up were not "suitable”. The other contentions may. be dealt with summarily. In order for Felix to prevail with respect to its contention that the indemnification clause in its contract with Con Edison does not apply to the present situation, Felix must show that it is free of negligence (see Carollo v Consolidated Edison Co. of N. Y., 57 AD2d 853). As discussed earlier, this Felix is unable to do. The question of plaintiff’s contributory negligence was clearly a question to be determined by the jury. An increase in the ad damnum clause from $2,000,000 to $3,300,000 upon a re-evaluation of injuries incurred as a result of facts already known to the defendants was not improper in the circumstances (see Wagner v Huntington Hosp., 65 AD2d 771). Lazer, J. P., Gulotta and Margett, JJ., concur.