F. CONTRACTOR'S LIABILITY FOR FAILURE TO GUARD

STAIRWAY

Liability for violation of section 18 by a contractor cannot be charged to the owner of a building, in course of construction, when the sole responsibility of the latter was that of inspection, and not that of superintendence. So ruled the Appellate Division in the following case.

SLAVIZ V. WAHLIG & SONSIN Co., 167 App. Div. 658 (May 7, 1915), in part. The respondent attempted to show interference with the work by Wahlig & Sonsin Company, and claims to hold that company under section 18 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1911, chap. 693), on the ground that it never surrendered control of the work; but the evidence to support this claim was manifestly insufficient, while defendants' testimony made it clear that all that Wahlig & Sonsin Company did was to inspect rather than to superintend the work of the Grimaldi firm, and that it never undertook to do more than to see that the latter kept to their contract. (Uppington v. City of New York, 165 N. Y. 222; Herman v. City of Buffalo, 214 id. 316.)

VIII. PROTECTION OF EMPLOYEES ON BUILD

INGS IN COURSE OF CONSTRUCTION

A. FLOORING

Section 20 of the Labor Law was designed to protect workmen employed on the construction of buildings by requiring, with some qualifications, the laying of floors on each story of a building as construction progresses. In the following case, judgment for $2,800 had been recovered in the Supreme Court for the death of a carpenter, who had fallen from a steel beam on the first floor above. the ground floor through an opening in the ground floor to the basement twenty-one feet below. The building was of steel construction and an open space had been left in the ground floor. In buildings of iron or steel construction, the statute requires that floors be planked over "except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such building, or such spaces as may be designated by the plans and specifications for stairways and elevator shafts." The Appellate Division, in an opinion by Justice Woodward, reversed the judgment. The Court of Appeals affirmed the reversal. A part of the Appellate Division's opinion and the memorandum of the Court of Appeals follows:

Following is the opinion of the Appellate Division, in part: ITHACA TRUST Co. v. DRISCOLL BROS. Co., 169 App. Div. 377 (Sept. 15, 1915), in part.

Assuming, however, that the jury might properly speculate upon this "problem of probabilities," did the defendant, under the provisions of sec. tion 20 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd.), owe the plaintiff any duty to have this ground floor entirely completed; did it owe the duty of closing up all of the ground floor space? The statute makes no such requirement. The language of the act, as amended by chapter 492 of the Laws of 1913, is that "All contractors and owners, when constructing buildings in cities, where the plans and specifications require the floors to be arched between the beams thereof, or where the floors or filling in between the floors are of fire-proof material or brickwork, shall complete the flooring or filling in as the building progresses. * If the floor

beams are of iron or steel, the contractors for the iron or steel work of buildings in course of construction or the owners of such buildings shall thoroughly plank over the entire tier of iron or steel beams and extending not less than

six feet beyond such beams on which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such building, or such spaces as may be designated by the plans and specifications for stairways and elevator shafts. If a building in course of construction is five stories or more in height, no lumber or timber needed for such construction shall be hoisted or lifted on the outside of such building."

*

*

The statute does not require that each floor shall be completed so that there shall be no openings in it. It merely requires that the contractor or owner "shall complete the flooring or filling in as the building progresses," which means only that the floors and filling in shall be constructed in accordance with the plans and specifications, leaving such " spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such building, or such spaces as may be designated by the plans and specifications for stairways and elevator shafts." There is no allegation in the pleadings, no evidence in the record, that the open space in the ground floor was not reasonably necessary for the raising or lowering of materials to be used in the construction of the building. The allegation is to the effect that the "said uncovered floor space on the ground floor extended from the east wall to the west wall of said building and was about ten or fifteen feet wide and the center line of said open space ran parallel with the south wall of said building, and about twenty-five or thirty feet distant therefrom." It is alleged that defendant "had also constructed a portion of said ground floor, which was built of fireproof material, as required by the plans and specifications," and the statute merely requires that they shall "complete the flooring or filling in as the building progresses." If a portion of the ground floor, built of fireproof material, had been filled in as required by the plans and specifitions, with the exception of "about thirty-five hundred (3500) square feet of said ground floor," constituting an oblong space across the building, the presumption would be that this open space was left for some of the excepted purposes of the statute, and if this was not the case it was the duty of the pleader to negative this presumption. Clearly there is no absolute duty on the part of an owner or contractor to floor or fill in all of the ground floor space, and neither the pleadings nor the evidence establish that the defendant had failed in its duty in this respect. The presumption is always that individuals and corporations have performed their duties as prescribed by law, and a pleading which does not show a violation of a statute certainly fails to afford the foundation for negligence based upon an alleged violation of such statute. This question was raised by the exception of the defendant to the submission to the jury of any question under the Labor Law, or under any law whatever, and presents a case where this court is justified in acting, because it was given to the jury upon a mistaken theory of the law.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event.

The foregoing decision was affirmed by the Court of Appeals,

220 N. Y. 617 (Feb. 9, 1917), in a memorandum opinion as follows:

Order affirmed and judgment absolute ordered against appellant on stipulation, with costs in all courts, upon the ground that the trial justice erred in charging the jury, in effect, that they might find that the opening in the floor caused the intestate to fall by reason of dizziness or fear on his part; and in further charging that they could not find the defendant guilty of negligence unless the specific act of falling was caused in whole or in part by the opening in the floor; thereby withdrawing from the jury the question as to whether or not the opening caused, in whole or in part, the injuries to plaintiff's intestate, and the right to render a verdict in favor of the plaintiff in case it did contribute to those injuries; no opinion.

B. HOISTING

ELEVATOR

SHAFT-FAILURE

BARRIERS AROUND

ΤΟ ERECT

While leaning over an elevator shaft, the elevator or hoist of which was used for hoisting purposes in a building under construction, plaintiff's intestate was struck and fatally injured by a descending cage. An action was brought against the company which had erected and was operating the hoist, and against both the general and the subcontractor under section 202, alleging failure to guard the shaft opening as required by section 20. The complaint against all three defendants was dismissed by the trial court. The Appellate Division affirmed the judgment of dismissal of the complaint against the company operating the hoist but reversed it against the general contractor and subcontractor.

RINANDO V. WEEKS & SON, 172 App. Div. 319 (April 14, 1916), abstract. The charge was specifically made in the complaint that the defendants failed to inclose the shaft on the fourth floor by a barrier eight feet in height, excepting on two sides used for taking off and putting on materials to be used in the construction, and failed to guard those two sides with an adjustable barrier not less than four feet from the floor, and not less than two feet from the edge of the shaft.

The decedent had been working only a day and a half or two days. He had been using a hammer which, while he was passing the shaft, fell down the same. He leaned over a barrier at the side of the shaft and was struck by an elevator. The testimony was conflicting as to just what sort of a barrier was erected and whether it complied with the requirements of the law. It was held that whether such barrier was sufficient was a question for the jury. The court said:

"The Pelham Operating Company erected and operated the hoist under a contract with the general contractor. It was not a contractor for the erection of any part of the building, but merely a lessor of the hoist. We think it owed no statutory duty to decedent to guard the shaft, and it has been so held by this court in the second department (Anderson v. Pelham Hod Elevating Co., 129 App. Div. 639).

"It is perfectly clear that the statute imposed the duty of guarding the shaft on the general contractor who constructed it. It is not claimed in behalf of the employer of decedent that the duty did not devolve upon it as well, and considering that such legislation should be construed liberally to accomplish the end which the Legislature had in mind, we think it did not devolve such duty upon an employer, at least, using the hoist for the purpose of elevating material in the performance of his contract."

C. SUFFICIENCY OF PLANKING

The question whether the planking of a building in course of construction is sufficient is a question for the determination of the jury. Lyles v. Terry & Tench Co., 227 N. Y. 361 (Dec. 9, 1919), rev'g 172 App. Div. 496.

D. RELATIVE LIABILITY OF OWNER AND CONTRACTOR In reversing a judgment for nonsuit granted by the Supreme Court, and affirmed by the Appellate Division, the Court of Appeals discussed the relative liability of the owner and contractor for compliance with section 20. The opinion, in full, follows:

MCNAMARA V. EASTMAN KODAK CO., 220 N. Y. 180 (Feb. 27, 1917). CARDOZO, J.: This is an action for injuries resulting in death.

In August, 1912, the defendant was the owner of a sixteen-story office building then in course of construction in the city of Rochester. An architect in the general service of the defendant prepared the plans and specifications; an engineer in the same service supervised the work. There was no general contractor. Separate contracts for separate parts of the work went to separate contractors. The contract for the steel work was given to one Mullen, and Mullen employed McNamara, the plaintiff's intestate.

On August 9, 1912, Flint, the defendant's engineer, complained that rivets were falling on the bricklayers below. He refused to allow the steel work to go on until a canopy was built and the bricklayers were protected. To enforce this direction he cut off the supply of steam. A foreman employed by the steel contractor ordered McNamara and other men to take up the boards that lay across the girders on the sixteenth floor and use them to build the canopy. While McNamara was lifting a board he fell through a ventilating shaft to his death. His administratrix has sued the owner. The trial judge dismissed the complaint, and the Appellate Division by a divided court sustained his ruling.