Martin v. Siegfried Construction Co.

16 A.D.2d 383, 228 N.Y.S.2d 251, 1962 N.Y. App. Div. LEXIS 9600

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1962
• Status: Published

Opinions

Williams, P. J.

The defendant has appealed from a judgment in favor of the plaintiff, an ironworker, rendered under a claimed violation of subdivision 4 of section 241 of the Labor Law. The pertinent parts of that section and subdivision are:

‘ ‘ All contractors and owners, when constructing or demolishing buildings or doing any excavating in connection therewith, shall comply with the following requirements:

* * *

“4. If the floor beams are of iron or steel, the entire tier of iron or steel beams on which the structural iron or steel work is being erected shall be thoroughly planked over, except spaces reasonably required for proper construction of the iron or steel work, for raising or lowering of materials or for stairways and elevator shafts designated by the plans and specifications.” (Italics added.)

The case was submitted to the jury solely on the question of whether subdivision 4 had been violated.

Before we comment on the facts, which are relatively simple, we might eliminate consideration of certain matters to show that our problem is concerned solely and only with the applicability of subdivision 4 of section 241. Before the charge of the Trial Justice the attorney for the plaintiff conceded that he had not established a cause of action based on common-law negligence ; that he had no cause of action under section 240 of the Labor Law; and that the plaintiff’s only possible cause of action would have to be founded or based upon subdivision 4 of section 241.

With all of this in mind, we now consider the facts. The plaintiff was employed by the Buffalo Structural Steel Corp., the steel construction subcontractor of the defendant. He was a member of what is known as a “ raising gang ”, which consisted of four men, two of whom worked with a crane and a crane operator on the ground while the other two, including plaintiff, worked on the steel frame or structure. At the time of the accident the plaintiff was working on the third-floor level, which was the ‘ ‘ tier * * * of iron or steel beams on which the

structural iron or steel work [was] being erected”. His work at that time consisted in setting crossbeams (floor beams) in position and temporarily bolting them to the connecting beams. On one occasion, when a crossbeam was being lifted by the crane so that it might be set in its proper place, he was standing on an outside horizontal beam which joined two outside vertical beams. As the crossbeam reached the third-floor level he reached out for it so that it could be placed in its proper position and, in doing so, he missed the beam and lost his balance. He fell outside of the structure but he was able to grasp the beam on which he had been standing, with one hand, and this diverted his body so that he fell through the inside of the structure and landed on a pile of dirt in the basement and was injured. There was no planking on the third floor where he was working or on either the first or second floors.

It should be borne in mind that he was placing the floor beams of the tier on which he was working and, at that time, there could have been no planks laid at or near the place where he was working because there were no floor beams to support them. Only after these floor beams had been laid and completely attached could planking have been possible at that particular place. Thus, there could have been no violation of subdivision 4 of section 241 for several reasons. First, as we have said, it was not possible to plank as there were no beams on which to lay planks. Secondly, it is never necessary, under the statute, to plank “ spaces reasonably required for proper construction of the iron or steel work”. However, had it been possible to plank this space, the construction of the iron or steelwork could not have. been completed thereafter because it is obvious that one cannot erect and set beams for a floor if such work is made impossible by planking.

In this relation the case of Moran v. Rheinstein Constr. Co. (10 A D 2d 976) is of interest. In that case plaintiff, a member of the steel erection crew, was standing on a beam when he was struck by a steel column being lifted by a crane. The court, in reversing judgment in favor of the plaintiff, said: “ The weight of the evidence is to the effect that either beam No. 440 was installed shortly before the accident or that the sloping ramp beams immediately to the north of beam No. 440 [on which he was standing], but at a lower elevation therefrom, were installed during the morning of the accident. If beam No. 440 was erected shortly before the accident, as defendant claims, then a reasonable time had not elapsed to give it the opportunity to plank over. On the other hand, if beam No. 440 had been installed several days before the accident, as plaintiff claims, then the sloping ramp beams were installed on the morning of the accident. In such event the space occupied by the sloping ramp beams was reasonably required for proper construction because that work could not have been performed if the opening had been covered at the level of beam No. 440 and, hence, there was no violation of the statutory duty. (Giorlando v. Stuyvesant Town Corp., 4 A D 2d 701.) ”

In the Giorlando case a judgment in favor of the defendant was affirmed. The plaintiff, an employee of the general contractor, was injured when he fell through an unguarded incinerator opening in the floor of the building being constructed for defendant, the owner. The court said: “ Defendant’s liability is predicated solely on a violation of the duty to plank over the floor, allegedly imposed on it by subdivision 4 of section 241 of the Labor Law. Judgment unanimously affirmed, with costs. The uncontradicted proof in the record establishes that work was in progress in and around the opening through which plaintiff fell, and that the work could not have been performed if the opening had been covered. Under those circumstances, we are of the opinion that the statute did not require such opening to be covered and that there was, consequently, no violation of the statutory duty to provide safeguards.”

In the present case the Trial Justice charged, in effect, that if the jury found a violation of subdivision 4 of section 241 of the Labor Law, and proximate cause, then there should be a recovery and contributory negligence would be no defense. We have no quarrel with this statement in the abstract. In fact we so held in Utica Mut. Ins. Co. v. Mancini & Sons (9 A D 2d 116). However, the Trial Justice also read to the jury paragraph 7.2 of rule 23 of the Rules of the Board of Standards and Appeals (N. Y. Off. Comp, of Codes, Rules & Regulations [7th Supp.], p. 396) of the Department of Labor. That section reads: ‘ ‘ Temporary flooring — skeleton steel construction in tiered buildings. The entire erection floor shall be solidly planked over and there shall be a floor not more than two stories below the tier of beams on which bolting, riveting, welding or painting of structural steel is being done. The planking shall be laid tight except for access openings, be secured fastened to the framework of the structure, and shall be of proper thickness to carry the working loads but shall not be less than two inches thick. Where erection is being done by means of a crane operating on the ground, a planked floor area shall be maintained not more than two stories below, and directly under that portion of any tier of beams on which bolting, riveting, welding or painting of structural steel is being done.” (Italics added.) As we have observed the Trial Justice had charged the doctrine of strict liability without regard to contributory negligence, if there was a violation of the statute and proximate cause; but he then asked the jury to consider also the rule above quoted and he instructed “ that this has the force of law ” and that it should be enforced [sic] by a contractor such as defendant unless there should be some conflict with the provisions of the statute. This was erroneous. The declaration in the forepart of the rule that it has the force and effect of law does not make it so, nor would a legislative declaration to that effect achieve that result. It is well established that the violation of such a rule does not establish negligence per se, but is simply some evidence of negligence which the jury could take into consideration, together with the other evidence in the case. (Schumer v. Caplin, 241 N. Y. 346; Utica Mut. Ins. Co. v. Mancini & Sons, supra, p. 118; Vallina v. Wright & Kremers, 7 A D 2d 101, 109.) The Trial Justice further said: ‘ ‘ But if you feel that the Board of Standards and Appeals has in any way diluted or written down or attempted to write down the requirements of the State Statute, Section 241, sub-division 4, then you will enforce the statute and not this Building Code, or rather this Board of Standards and Appeals Code.” Then again, after reviewing the statute, he said: “To contrast then, the Section of the Board of Standards and Appeals provision, that would require the planking not more than two stories below.

You will recall the statute says nothing about planking two stories below. It affirmatively states what is to be done. The Board rules would permit the planking not more than two stories below the area concerned.” And he also charged: “ I charge you that so far as the rules and regulations are promulgated pursuant to Section 241 of the Labor Law, those sections are simply designed to supplement and effectuate the legislative policy enunciated in the Labor Law itself. ’ ’ Further, “You will determine, based on my earlier charge whether the statutory obligation under the facts of the case required the defendant to plank the second floor or the first floor ’ ’. This charge not only told the jury, in effect, that if the rule “ diluted ” or wrote down the requirements of the statute, then the jury would enforce the statute. However, it is obvious that the rule required more than the statute, rather than to “ dilute ” the statutory requirements, and the effect of the charge was to instruct the jury that not only the statute but the rule should have been complied with and that the failure to comply with either gave rise to a cause of action upon which the plaintiff’s contributory negligence, if any, would not prevent recovery.

It is clear that, when the Trial Justice spoke of planking the second floor or the first floor, he was talking about the rule and nothing but the rule, because there is nothing in the statute that has any reference to planking anywhere except upon the “ tier * *■ * on which the structural iron or steel work is being erected.” The courts have construed this expression to mean just what it says, namely the floor upon which the work is being done and not any other floor..

In Olsommer v. Walker & Sons (4 A D 2d 424, 430) we said: ‘‘ The section has been construed to mean that ‘ upon the setting and bolting of the floor beams it became the duty of the employer to then floor over the whole space, ’ with the exceptions expressed in subdivision 4 of section 241 ”.

Drummond v. Norton Co. (156 App. Div. 126) is a leading and often-cited case. There a judgment in favor of the plaintiff was affirmed because of the failure of the structural steel contractor to plank the floor on which he was working. The charge of the trial court, which was approved, contained this passage (pp. 130-131): “I charge you that this statute is a measure for the benefit of workmen engaged in steel construction such as Drummond was in this instance; that the words ‘ is being erected ’ are words of identification and not of limitation; they do not limit the time when the planks must be put down, but they identify or designate the tier which is to be thoroughly planked over, as for example, the tier on which the iron work is being erected in contradistinction to the tier on which the iron work has just been completed. If the view I take of this statute is right, it requires the contractor to thoroughly plank over the entire tier on which the structural steel work is being erected except the excepted places, as soon as practicable after the tier below is finished and before the men begin to face the perils of work thereon.” Further, the trial court observed (p. 131): ‘ ‘ Of course there is a period of time after the iron or steel beams are erected when they cannot be covered and when employees thereon are subject to risks of the employment which are open and obvious and do not proceed from any negligence of the employer or any failure of statutory duty but are inherent in the nature of the business itself. The men, for instance, who are laying the floor are subject to these risks.”

In Duggan v. National Constructors & Engineers (223 App. Div. 163, 167), the court said: ‘‘ Besides this section of the statute and of the ordinance each refers to the floors on which iron work is being erected, which in this case was the eighteenth to the twentieth floor, and, therefore, has no application.” In that case, the plaintiff was descending from the 15th floor to the 14th floor when a ladder collapsed and he fell from the 15th floor to the 13th floor through an elevator shaft which was about 14 feet square.

It is readily apparent merely from the language of paragraph 7.2 of rule 23, as well as from the above-cited cases, that this rule creates duties and obligations on the part of the steel contractor in addition to those required by the statute. It cannot be claimed that this ride merely amplifies or interprets the statute, because it is completely at variance with it. The rule refers to a “ floor not more than two stories below the tier of beams on which bolting, riveting, welding or painting of structural steel is being done ” and again “ a planked floor area shall be maintained not more than two stories below, and directly under that portion of any tier of beams on which bolting, riveting, welding or painting of structural steel is being done.” Clearly, these provisions were enacted and promulgated for protection to iron and steelworkers and others in addition to the protection afforded by subdivision 4 of section 241. Incidentally this is one of a group of rules which were enacted under the statutory authority of sections 27-a, 28, 29 and 241 of the Labor Law. Subdivision 6 of section 241 provides that the Board of Standards and Appeals may make rules to provide for the protection of workmen in connection with construction of buildings, and that the contractors 11 shall comply therewith”. Furthermore the statute says nothing about erection by means of a crane operating on the ground, but the rule does. If it was intended that this rule would coincide and be coextensive with the obligations created by statute, there would be no point in its enactment.

Because of the errors in the charge, and because the plaintiff has failed to make out a case under subdivision 4 of section 241 of the Labor Law, the judgment should be reversed. It may be that if plaintiff is given a new trial and the case is properly presented under paragraph 7.2 of rule 23, a cause of action may be established. For this reason a new trial should be granted.