Bowden v. J. L. Mott Iron Works

113 A.D. 738, 99 N.Y.S. 209, 1906 N.Y. App. Div. LEXIS 1528

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 1906
• Status: Published

Opinion

Rich, J.:

These actions were brought -by a husband and wife respectively to recover damages for a personal injury sustained by the wife through the alleged negligence of the defendant, and the consequent damage to the husband resulting from the loss of services of his wife and expenses attendant upon her sickness. The actions were tried together, resulting in verdicts for the plaintiffs. Motions were made by the defendant to set the verdicts aside and for a new trial in each case, upon the exceptions and because the verdicts 'were contrary to law and contrary-to the evidence. From the judgments accordingly entered and the orders denying said motions these appeals were taken.

In February, 1901, a large number of independent contractors, having in their employ 100 or more workmen, were engaged in the erection of what is called the “ Temple Bar Building,” situate on the northwest corner of Court and Joralemon streets, in the borough of Brooklyn!.. Among said contractors- were the firm of Shipway & Sons, who were doing the marble and mosaic work, and' the defendant, who had the contract for the tile work in said build'ing. A large wooden sign ten feet wide and six feet high, that had been used as an advertisement by a real estate agent, stood on the morning of February fifteenth against the basement wall of the ' building in. a position not causing, any apprehension of danger; to passersby upon the streets. It partially covered one or more of the basement- windows, excluding the light therefrom,.in which basement * the employees of Shipman & Sons "were working. An employeé of said firm ordered' the sign moved, that the workmen might have more light, and two marblecutters’ helpers, .in the employ of Ship-man & Sons, pushed the sign along the building towards Joralemon street until it projected past the building- into the street about eighteen indies. There was a strong wind blowing, and they placed two .barrels, of sand against the bottom of the sign to prevent its being blown over. One of these men, Wang, testified that between two and three o’clock of that day lie saw a.“ tiler’s "helper,” whom he had heard called “ Duffy,” take one of these .barrels away, and is confident £hat after its removal there was no barrel lefttó support-the sign. Who moved the- other 'barrel or what became of the contents of either does not appear, Wang told him not to take the barrel-away, and the helper replied, “That is my sand, I have got to use-it.” -A short, time , after the. barrels had been moved the*: plaintiff, accompanied by a .little hoy three years old, was passing through Court street, and as she reached Joralemon street the wind blew this sign over-and in falling-struck her person, inflicting the injury complained of. '

. At the close of plaintiff’s evidence the defendant moved to dismiss- the complaints in both actions upon- the ground" that-there, is nov.evid-enee of negligence on .the- part of the defendant or any of its servants" or employees,, and there is no jiroof that even if the person mentioned was in the employment of the defendant he was acting., within the scope of his -employment.” . The learned trial -justice reserved, his decision until all of the evidence, was, in. The defendant, then called witnesses who gave evidence'(uncoiltradicted) showing, first, -that the sand used by its employees in the'work done by them" upon said building was never, bought or delivered in barrel's, bnt..wa's- taken, to the building in carts or dirt trucks and dumped through coalholes in the" sidewalk' into the basement; second, that n;o man • by the - name of Duffy was employed by the defendant on that building at ány time .during .its'construction third, that sand left out in uncovered barrels, at that season of the year Would- be. rendered unfit for use iii defendant’s- business and could not be used or thawed out so as to be fit for use ; fourth, that the tile setter or layer, working on the job on February fifteenth, was named Farley, and he had as helpers three men named Baker, Morrow and Sevenen (these helpers were. called and each testi- ' tied that he did not move any barrel from in front of the sign on that day. Farley, the tile layer, was shown to be out of the State and was not produced); fifth, that it was no part of the tile layer’s duty to move or take in barrels of sand; sixth, that- there was a man by the name of Duffy working upon the building off and on for about a year during its construction, who was helping the plasterers, but wag in no manner connected with the tile layers.

At the close of the evidence the defendant renewed its motion to dismiss the complaints, to which the trial justice replied: “ I will make the same disposition of it as on the previous motion; I will send the case to the jury.” The jury were charged that before they could find verdicts for the plaintiffs they must find that it had been' established by a fair preponderance of the testimony that “one of the defendant’s employees removed this supporting or retaining barrel from the front of this sign, .and that he did it while engaged in his master’s work.” , ■ . .

I am convinced, after a careful.consideration of the evidence, that the motions to dismiss the complaints should have been granted upon the ground that it was insufficient to warrant the submission of the case to the jury, and that their finding that the person who moved the bavuels-was an employee of defendant and in so doing was engaged in his master’s work, is contrary to and against the weight of the evidence. The only testimony in the case connécting the defendant in any manner with the accident is that of Wang and is very unsatisfactory. He is not able to identify or describe the person who he claims moved the barrels, except as a “.tiler’s helper” whom he had heard called “ Duffy;” he only knows' that he wras a “ tiler’s helper,” because he had seem him working in the building. The only description he can give of him is that he wore overalls, which were worn, as he says, by every workman in the building. He does not know.how long this man had been working there or in what part of the building he then was or theretofore had been working. The fact that there was sand in the barrels in no manner aids in the identification of the person who moved the barreís as- an employee of the defendant, for. while its employees used..sand' in their work, sand was also used by the plasterers, the marble and mosaic layers Shipman &. Sons’ employees:—and others; there is no proof that the sand in the barrels was the property of the defendant or was used by its employees. Ñor does’defendant’8 inability to produce Farley aid plaintiff’s contention, for it was ■ Duffy, a tiler’s helper, and not Farley, a tile layer, who it is claimed moved the barrels. The evidence is, so unsatisfactory and slight upon this crucial question .and is overcome to such an extent by the testimony produced by the defendant as that a- verdict- based u-poia it cannot be permitted to stand. If it were clearly established that the person moving the,barrels Was an employee of defendant, the case is barren of evidence showing pr warranting tlie inference that in 'so doing lie was engaged in his master’s work, and a jury cannot be permitted to indulge in speculation in order to create a basis for their verdict.On the contrary, 1 'think the..evidence establishes - that the master’s work did not require or permit such act on the-part of its employee. The defendant had procured sand -on the morning of that day that had befen drawn to the building, in dirt' carts and shoveled through the holes in the sidewalk into the basement, where -its employees were working, and no necessity is shown for a greater quantity of' sand for use on that day than was thus delivered. Tlie sand in the barrels, if -it belonged to defendant, . - could not be used in its work because of its frozen condition. Its - .employees, were not, in the.ordinary course of their business, in or near that part -of* the building Wdierfe the-barrels were. .These facts destroy any. inference arising from the only evidence given of the servant moving the barrels in the business of his master, viz., that • the barrels contained sand; arid the defendant used sand in the wbrk its employees were engaged in. I think the evidence preponderates in defendant’s favor to such an extent that we would not be - warranted in sustaining-the judgments.

The • judgments, and orders must be reversed' and - new trials granted, costs to abide the event.

Hirschberg, P. J., Hooker, Gaynor and Miller, JJ., concurred.

judgments and orders reversed and new trials granted; costs to abide the event. ■■