Bailey v. Wagner, Whirler, & Derrick Corp.

266 A.D. 875, 42 N.Y.S.2d 829, 1943 N.Y. App. Div. LEXIS 5005

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1943
• Status: Published

Opinion

Close, P. J., Carswell, Johnston and Lewis, JJ., concur; Hagarty, J., dissents and votes to affirm, with the following memorandum: The failure of defendants to supply a crane with a boom in good working order was not the proximate cause of the happening of the accident. When the crane was delivered plaintiff inspected it and observed that the boom was twisted. Despite this defect, plaintiff and his fellow workers forced the jib onto the boom with difficulty. This was his own voluntary act, with knowledge of the condition. The accident occurred during the course of efforts by fellow workers of the plaintiff to disconnect the jib which plaintiff and others, with knowledge, had so voluntarily joined. Thus, they were engaged in endeavoring to undo their own handiwork. This was not an act for which defendants were responsible. In addition, plaintiff was guilty of contributory negligence as a matter of law in placing his foot directly underneath the jib as efforts were being made to loosen it.