Opinion
March, 1904.
Edwin A. Jones [ Harford T. Marshall with him on the brief], for the appellant.
Frank Harvey Field [ J. Edward Swanstrom and Conrad Saxe Keyes with him on the brief], for the respondent.
The plaintiff's intestate was a servant of a sub-contractor of the defendant, Mr. Young, impleaded. Mr. Young was a contractor for the reconstruction of a building. During the work the interior of the building collapsed, and the intestate working therein was thereby killed. The testimony tending to show that this collapse was due to lack of shoring, and the responsibility of Mr. Young therefor, justified the submission of the case to the jury, and I see no warrant for disturbing its conclusion upon the facts.
The learned counsel for the appellant assigns many errors both in the rulings and in the charge. The brother of the intestate having testified that the intestate was as good a structural iron worker and iron finisher as "can be made, * * * that is, the general run of the men," was asked: "Q. Now, can you tell us what wages that class of men are getting now? A. My brother's wages would be ____." General objection was thereupon interposed and overruled with an exception. The witness answered: "A. Four dollars and a half a day at the least — well, four dollars is the run of the wages — is the union scale of wages. Well, a man that does a little extra work like that, taking care of a gang, at times has the privilege of getting a little more. My brother did occasionally take care of a gang, sometimes." It is argued that there is no proof that the plaintiff's intestate was a union man, and no supposition that he would become one, and further that such evidence was incompetent in the face of the proof that the wages paid to the intestate were three dollars and twenty-five cents a day. But the form of the objection did not raise the question now presented. It was a general objection to the unfinished sentence: "My brother's wages would be ____," evidently aimed at the opinionative or conjectural character of the answer. The question simply assumes that the brother would have continued to be of the same class of workmen, would have had employment and would have received pay for his services equal to that of his fellows. I think it falls within the rule of Fajardo v. N.Y.C. H.R.R.R. Co. ( 84 App. Div. 354, 358), and not within the limitations thereof. The question did not call for any reference to union wages. No objection was made to that reference, no motion was made to strike it out. The witness did not testify that the intestate would have received four dollars and fifty cents because he would have been a union man. His answer is positive: "Four dollars and a half a day at the least." He states a fact, not even that union wages are four dollars and fifty cents, but that four dollars is the run — the average — the union scale. This is far from saying that the intestate would have received four dollars and fifty cents a day because he would have become a union man. Undoubtedly the rates of wages are more or less regulated by trades unions, whether paid to union men or to non-union men. And it cannot be said that it was error to permit the witness to give a ground for his conclusion or to form a conclusion as to the rate then payable to non-union men upon the basis of the prevailing rate among the union men. The authorities cited by the appellant refer to the compensation, salary, wages or stipend which would have been paid provided the intestate was promoted or was advanced to a higher class of employees or went into some other business or calling. That is but a possibility, and such proof is but problematical, but in this case the question merely relates to the wages payable to a man about thirty-five years old, assuming that he would have continued in the same status. The only problematical elements are continuance of life and an opportunity to labor on.
A witness testified that about six weeks before the accident he heard Decker, the superintendent for one of the sub-contractors, tell Young, the defendant, in answer to an order by Young as to the hoisting of certain beams, that the building was already unsafe. Objection was made and exception was taken after the testimony was given, and when the court asked for the ground of the objection the counsel replied that they contended that Mr. Young was not doing any of the work and all of the work was sublet. As there was not, then, a particle of proof of this, the objection was not then well taken to this testimony which was competent on the subject of notice to Mr. Young.
A witness testified that he went into the building about six weeks before the accident. He was then stopped by the objection that the condition of the building at that time was too remote as throwing any light upon the condition at the time of the accident. The objection was overruled under exception. Bearing in mind the form of the objection I think that it was not reversible error to receive the evidence. Of course, the negligence must be determined by the condition of the building at the time of the accident. There are authorities which forbid evidence of the condition of the locus in quo prior to the accident. But it must be remembered that here was a continuous work of radical reconstruction which required the removal and change of almost the entire interior of the building. The work was one of degrees and had progressed from day to day up to the removal of partitions and the cutting of chases. To show the condition of the continuous work at any given time, even six weeks before, was not "too remote as throwing any light on the condition at the time of the accident." The objection was, as it were, to a description of a stage in progressive work, which enlightened the jury as to its character and progress. Moreover, the history of the work from that time up to the time of the accident was put before the jury, as well as the condition of the building at the time of the fall. I think it cannot be said, in any event, that the ruling was so erroneous as to require a reversal. (See Keatley v. I.C. Ry. Co., 94 Iowa 688, 689.)
There is no objection in the record to the proof of a prior accident.
It is also argued that it is improper to admit evidence as to the condition of the building on Monday following the Saturday when the accident occurred. But this question is only presented by a ruling upon the question: "Q. And on Monday, what did you (the witness) and Bowman do in the building?" The objection taken was: "We object to what was done on Monday after the accident, because the conditions were materially changed." The question did not call for the condition of the building. If the answer described it, the remedy was to strike it out. Mr. Cole, an official who examined the building after the accident, was called by the plaintiff. On cross-examination, he was asked: "What was your conclusion?" Objected to "as incompetent, irrelevant and immaterial. If he wishes to put him on as his expert here, it is not competent now." The objection was sustained under exception. I think that the ruling may be upheld under Van Wycklen v. City of Brooklyn ( 118 N.Y. 424) and Dougherty v. Milliken (163 id. 527). (See, too, Pursley v. Edge Moor Bridge Works, 56 App. Div. 71, and cases cited; affd., 168 N.Y. 589.) As to the specific question as to the chases or recesses, the answer was not stricken out. It was competent for the witness, Mr. Hull, to testify whether twenty-seven feet was an unusually long span. This is not a matter of common knowledge. If it was, it was not reversible error. ( Miller v. Erie R.R. Co., 34 App. Div. 217.) The propriety of the cross-examination of Mr. Young as to the shoring of the building is not presented save by an objection to the question whether it is not a constant practice in New York to continue doing business in buildings which are being reconstructed, and whether it was not possible in all cases to keep floors, by shoring them, so that they will not fall down. The first question was not of material importance, and the second the witness did not answer. The question put to the architect, Mr. Cornell, on cross-examination, "Q. And the general contractor was responsible to you as the representative of the owner for the carrying out and fulfillment of all of the terms of the contract and specifications?" was not objectionable in view of the fact that the witness had testified on the direct: "I would when I went there look the building over to see that the plans and specifications were being carried out; and if they were not carried out, I would notify the general contractor. The general contractor was Mr. Young." The subsequent question as to the meaning of the shoring clause is not harmful for the reason that the answer is plainly the correct interpretation of the clause in question.
The request charged under exception as follows, "If the jury find that the absence of the shoring in the building contributed to produce its collapse, and that it was the duty of the defendant Young to furnish whatever shoring was to be done in the building, and if they further find that it was negligent for the person whose duty it was to furnish shoring to omit to do so, they may hold the defendant Young liable in the absence of contributory negligence or assumption of risk on the part of the intestate," is perhaps subject to verbal criticism, but it is innocuous in view of the fact that at the instance of the learned counsel for the appellant the court subsequently charged: "That to find defendant Young responsible, the jury must find some act of personal negligence on his part which caused the accident, independent of all other causes."
The request, "In the absence of stipulations or contracts devolving the work of shoring the building upon a subcontractor, the duty of shoring rested upon the principal contractor," was not erroneous. The charge is not that the contractor was bound to shore the building as matter of law, but that the duty of shoring rested upon the contractor as against sub-contractors in the absence of any proof to the contrary. It certainly did not rest upon the owner. ( Burke v. Ireland, 166 N.Y. 305, 312.) It certainly did not presumably rest upon any sub-contractor. The charge as to the hazards, originally made, is an adoption of the head note of Davidson v. Cornell ( 132 N.Y. 228). If it be open to the rather subtle criticism made, the court charged the law in the following request.
The request to charge: "The contract between the owner and the defendant Young devolved upon Young the duty of accomplishing the result intended, to wit, the reconstruction of the building with safety to the workmen and the public," is open to criticism as to the effect of the contract upon strangers thereto. ( Cochran v. Sess, 168 N.Y. 372.) But the court, at the appellant's request, thereafter charged: "* * * any provision in the contract between the defendant Young and the owners of the building as to the eventual liability for damages does not inure to any benefits to the plaintiff in this action." The other requests do not require particular comment. The learned counsel for the appellant sums up his objections as follows: "Taking as a whole the instructions given over exception and those refused, it certainly seems apparent that the jury were saturated with the idea (1) that Young was an absolute insurer for the safety of plaintiff's intestate; (2) that he was responsible to plaintiff under, pursuant to, and because of, his contract with the owner to which decedent was not a party; (3) that it was his duty to do the shoring at the place where the beams fell, and to see that such shoring was always in place; (4) that he interfered with the details of the work by giving orders in respect thereof, despite the whole of the evidence showing that he only gave orders to see that the work conformed to the plans and specifications; (5) that negligence of deceased is no defense even though the proximate and concurring cause; (6) that assumption of risk entered into the relation existing between Young and deceased, and (7) most of all, he was liable for the negligence of the person whose duty it was to do the shoring, whomsoever it may have been."
(1) The court did not finally charge that Young was an absolute insurer because it charged that "to find defendant Young responsible, the jury must find some act of personal negligence on his part which caused the accident, independent of all other causes." (2) The court finally charged: "Any provision in the contract between the defendant Young and the owners of the building as to the eventual liability for damages does not inure to any benefits to the plaintiff in this action." As to 3, see the authorities cited, supra. As to 4, I think the charge was fairly within the evidence, especially in view of Mr. Young's admission before the coroner's jury. As to 5, the court charged quite the contrary, namely, if it was the proximate and concurring cause, it precluded recovery. As to 6, the court did not charge that the assumption of risk entered into the relation, though it did charge as to that doctrine. And as to 7, the court finally charged correctly: "To find defendant Young responsible, the jury must find some act of personal negligence on his part which caused the accident, independent of all other causes."
The judgment and order should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.