McDonnell v. Metropolitan Bridge & Construction Co.

New York Court of Appeals

McDonnell v. Metropolitan Bridge & Construction Co.

102 N.E. 543, 209 N.Y. 106, 1913 N.Y. LEXIS 804

DecidedJune 17, 1913

StatusPublished

This text of 102 N.E. 543 (McDonnell v. Metropolitan Bridge & Construction Co.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDonnell v. Metropolitan Bridge & Construction Co., 102 N.E. 543, 209 N.Y. 106, 1913 N.Y. LEXIS 804 (N.Y. 1913).

Pincite

Opinion

Hogan, J.-

From the foregoing statement it will be observed that there was a disputed question of fact as to the proximate cause of the accident which resulted in the death of McDonnell. While the evidence adduced by the plaintiff is not as clear as it might be, due to the fact that the principal eye-witnesses of the accident were not familiar with the English language, still, the evidence of the witness Sernicola was clear to the effect that the “ stiff leg ” which was being put in plac e turned around and the boom also and struck this other c stiff leg5 and the whole thing fell.” It was established by the evidence that the death of McDonnell was caused by his falling from the top of the mast and being struck by a piece of the “ stiff leg.” Evidence was also given by plaintiff that the “ stiff leg” was broken, that the timber of the same was found to be soft and pulpy, contained dry rot, and was what is called “ dead wood,” and that the condition of the same would have been ascertained by inspection.

*110 As the plaintiff was entitled to the benefit of every fact that the jury could have found from the evidence, and to every legitimate inference therefrom, we are of the opinion that a question was fairly presented for the determination of a jury as to whether or not the defendant master had exercised ordinary care and diligence in providing the deceased with a reasonably safe place to work and in the proper inspection of the appliances and materials which defendant furnished plaintiff’s intestate in the course of his employment, also as to whether or not the proximate cause of the injury was the breaking of the mast and “ stiff leg ” which was being put into place. For this reason the judgment should be reversed and a new trial ordered, costs to abide the event.

Cullen, Oh. J., Werner, Willard Bartlett and Hiscooic, JJ., concur; Chase, J., dissents upon the ground that as matter of law it appears from the record now before us that the breaking of the “ stiff leg” was not a proximate cause of the accident; Collin, J., absent.

Judgment reversed, etc.

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Hogan, J.-

From the foregoing statement it will be observed that there was a disputed question of fact as to the proximate cause of the accident which resulted in the death of McDonnell. While the evidence adduced by the plaintiff is not as clear as it might be, due to the fact that the principal eye-witnesses of the accident were not familiar with the English language, still, the evidence of the witness Sernicola was clear to the effect that the “ stiff leg ” which was being put in plac e turned around and the boom also and struck this other c stiff leg5 and the whole thing fell.” It was established by the evidence that the death of McDonnell was caused by his falling from the top of the mast and being struck by a piece of the “ stiff leg.” Evidence was also given by plaintiff that the “ stiff leg” was broken, that the timber of the same was found to be soft and pulpy, contained dry rot, and was what is called “ dead wood,” and that the condition of the same would have been ascertained by inspection.

*110 As the plaintiff was entitled to the benefit of every fact that the jury could have found from the evidence, and to every legitimate inference therefrom, we are of the opinion that a question was fairly presented for the determination of a jury as to whether or not the defendant master had exercised ordinary care and diligence in providing the deceased with a reasonably safe place to work and in the proper inspection of the appliances and materials which defendant furnished plaintiff’s intestate in the course of his employment, also as to whether or not the proximate cause of the injury was the breaking of the mast and “ stiff leg ” which was being put into place. For this reason the judgment should be reversed and a new trial ordered, costs to abide the event.

Cullen, Oh. J., Werner, Willard Bartlett and Hiscooic, JJ., concur; Chase, J., dissents upon the ground that as matter of law it appears from the record now before us that the breaking of the “ stiff leg” was not a proximate cause of the accident; Collin, J., absent.

Judgment reversed, etc.

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Bluebook (online)

102 N.E. 543, 209 N.Y. 106, 1913 N.Y. LEXIS 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonnell-v-metropolitan-bridge-construction-co-ny-1913.