McGinley v. Interborough Rapid Transit Co.

Appellate Terms of the Supreme Court of New York

McGinley v. Interborough Rapid Transit Co.

143 N.Y.S. 1061

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 13, 1913

StatusPublished

This text of 143 N.Y.S. 1061 (McGinley v. Interborough Rapid Transit Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGinley v. Interborough Rapid Transit Co., 143 N.Y.S. 1061 (N.Y. Ct. App. 1913).

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Opinion

BIJUR, J.

This action was brought at common law for damages for injuries sustained by the plaintiff -while working in the subway. Plaintiff and some fellow workmen were removing columns, and for the purpose of driving them out of .place used an iron beam as a sort of battering ram. At the direction of their foreman, this battering ram was suspended by a rope slung over' an iron bar in the subway roof. When the ram was used, the bar fell, and struck and injured the plaintiff. On this statement of facts it is evident that no issue was presented to submit to the jury, and defendant’s m'otion to dismiss the complaint at the close of plaintiff’s case should have been granted.

[1,2] The doctrine that the master must furnish the servant with a safe place to work has no application, because there is no claim that there was a lack of safety in the place. The fact that a bar which was placed in the roof of the subway for concededly other purposes was improperly and negligently used by workmen under the direction of a foreman does not constitute a “place unsafe.” It was conceded on the trial that defendant had furnished for this job “dogs”-or clamps to sustain the weight of these battering rams in a safe way. The failure'to use these was the act of the foreman in a detail of the work, or the negligence of the foreman, for neither of which, under the circumstances, defendant could in the present state of the law be charged. See Vogel v. American Bridge Co., 180 N. Y. 378, 73 N. E. 1, 70 L. R. A. 725. The motion to dismiss was renewed at the close of the defendant’s case, and due exception was taken to refusals of the learned judge below to charge in accordance with requests of defendant’s counsel instructing the jury as to the correct rule of law applicable to the case.

Judgment reversed, and new trial granted, with costs to appellant to abide the event.

SEABURY, J., concurs. GUY, J., taking no part.

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BIJUR, J.

This action was brought at common law for damages for injuries sustained by the plaintiff -while working in the subway. Plaintiff and some fellow workmen were removing columns, and for the purpose of driving them out of .place used an iron beam as a sort of battering ram. At the direction of their foreman, this battering ram was suspended by a rope slung over' an iron bar in the subway roof. When the ram was used, the bar fell, and struck and injured the plaintiff. On this statement of facts it is evident that no issue was presented to submit to the jury, and defendant’s m'otion to dismiss the complaint at the close of plaintiff’s case should have been granted.

[1,2] The doctrine that the master must furnish the servant with a safe place to work has no application, because there is no claim that there was a lack of safety in the place. The fact that a bar which was placed in the roof of the subway for concededly other purposes was improperly and negligently used by workmen under the direction of a foreman does not constitute a “place unsafe.” It was conceded on the trial that defendant had furnished for this job “dogs”-or clamps to sustain the weight of these battering rams in a safe way. The failure'to use these was the act of the foreman in a detail of the work, or the negligence of the foreman, for neither of which, under the circumstances, defendant could in the present state of the law be charged. See Vogel v. American Bridge Co., 180 N. Y. 378, 73 N. E. 1, 70 L. R. A. 725. The motion to dismiss was renewed at the close of the defendant’s case, and due exception was taken to refusals of the learned judge below to charge in accordance with requests of defendant’s counsel instructing the jury as to the correct rule of law applicable to the case.

Judgment reversed, and new trial granted, with costs to appellant to abide the event.

SEABURY, J., concurs. GUY, J., taking no part.

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Bluebook (online)

143 N.Y.S. 1061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcginley-v-interborough-rapid-transit-co-nyappterm-1913.

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