Opinion
March 25, 1957
In an action by an employee of a subcontractor on a building under construction to recover damages for personal injuries sustained when he fell off a ladder which slipped and shifted, the appeal is from a judgment entered on a jury verdict in favor of respondent. Judgment affirmed, with costs. The ladder had been used for weeks by employees of subcontractors of appellant, including employees of the respondent's employer, a subcontractor of one of appellant's subcontractors. Appellant was operating under a contract for the "general construction" of a school. In the situation revealed by the record, appellant, with regard to respondent, was in the same position as if it had been a general contractor operating under a contract for the complete construction of the building. Nolan, P.J., Wenzel and Beldock, JJ., concur; Murphy and Ughetta, JJ., dissent and vote to reverse the judgment and to grant a new trial on the grounds (1) that it was error to instruct the jury that appellant, as a matter of law, was the general contractor, and (2) that it was further error not to submit to the jury the question as to whether or not appellant had control of the ladder. The evidence tends to establish that the owner was in control of the premises and that appellant was not the general contractor but one of several prime contractors. The question as to whether or not appellant had the duty to maintain the ladder was, under all the facts of this case, for the jury.