Bellos v. Athens Hotel Co.

BIJUR, J. This action was brought to recover damages for personal injuries suffered by an employé in knocking down a wall. He was a steward in the employ of defendant, whose officer put him to work to help destroy this wall, and when plaintiff pointed out that the wall was shaky, and might fall, the officer told him that he would [1043] let him know if there was any danger of the wall falling. It did, however, fall without any warning, and plaintiff was injured. [1] The motion to dismiss was made on the ground that no negligence of the defendant was shown; but it is evident that plaintiff .was entitled to go to the jury on the question whether the manner of doing this work as prescribed by the defendant itself was safe. McGovern v. Central Vermont R. R. Co., 123 N. Y. 280, 288, 25 N. E. 373. [2] The defendant respondent now claims that plaintiff showed no negligence as pleaded in the complaint, which is quite true, because the negligence there pleaded was as to an unsafe place and insufficient means of shoring up the wall. But defendant did not make that point below; consequently it is not available here. Had it been made below, plaintiff would, on the evidence admitted without objection, have been entitled to amend his complaint. McCarton v. City of N. Y., 149 App. Div. 516, 133 N. Y. Supp. 939. [3] Respondent also claims that the plaintiff was guilty of contributory negligence, or assumed the risk of injury from the accident. Although the case was not brought under the Employers’ Liability Law, it cannot be said, as matter of law, that plaintiff was not entitled to recover. Those issues were for the jury. See particularly Leddy v. Carley, 78 Misc. Rep. 546, 139 N. Y. Supp. 227. Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.