Bartolomeo v. Charles Bennett Contracting Co.
| Decision Date | 29 March 1927 |
| Citation | 245 N.Y. 66,156 N.E. 98 |
| Parties | BARTOLOMEO et al. v. CHARLES BENNETT CONTRACTING CO., Inc. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Concetta Bartolomeo and another, as administrators of the estate of Joseph Bartolomeo, deceased, against the Charles Bennett Contracting Company, Inc Judgment of the Trial Term, dismissing the complaint, was affirmed by the Appellate Division (218 App. Div. 826, 218 N. Y. S. 697), and plaintiffs appeal.
Reversed, and new trial granted.
Appeal from Supreme Court, Appellate Division, First department.
William A. Schacht, of New York City, for appellants.
David A. Ticktin and Abraham Kaplan, both of New York City, for respondent.
This action was brought by the administrators of the estate of Joseph Bartolomeo to recover damages for his death. Bartolomeo was an employee of a firm of contractors known as the Powers-Kennedy Company. That company had a contract to make an excavation for the construction of an underground railway tube. In the prosecution of its excavating work it employed a steam shovel. The shovel was owned by the defendant. It consisted, in part, of a cab, housing a steam boiler and engine, and a long boom carrying a bucket at its end. When the machine was in operation, the cab, the boom, and the bucket made a partial or complete revolution. On a certain morning, before the steam shovel had started to operate, Bartolomeo was at work upon a ledge, with his back to the shovel. While he was in this position, without warning, according to some of the proof, the machinery of the shovel was set in motion and the shovel began to turn. As the shovel revolved, some part of the machine struck Bartolomeo a blow which caused his death.
The complaint charged that the defendant ‘failed to notify the said Joseph Bartolomeo of their intention to operate, manage, use, employ, exercise, and control the said steam shovel.’ The answer admitted that Bartolomeo was ‘struck upon his head by a steam shovel owned by this defendant, whereof he died.’ The trial judge dismissed the complaint upon the ground that the steam shovel was operated, not by the defendant, but by the Powers-kennedy Company, and that the men operating the shovel were the servants of the latter rather than of the former. Upon this appeal the point is not made that the defendant, not being the master of Bartolomeo, owed to him no duty of giving a warning that the shovel was about to operate. Neither is the point made that the record is devoid of credible evidence to the effect that no warning was given; nor that a failure to give warning did not constitute negligence which caused the death of Bartolomeo. The respondent opens its brief with the following sentence:
‘The sole question involved on this appeal is whether the defendant, respondent, Charles Bennett Contracting Company, Inc., operated and controlled the steam shovel which it is conceded fatally injured the plaintiff's intestate.’
[1] We will, therefore, consider that question and none other. In negotiating with the defendant for the use of the steam shovel, John Kennedy, a member of the Powers-Kennedy Company, said to Charles Bennett, the president of the defendant:
Accordingly the defendant provided the shovel, with an engineer and fireman to run it, at the agreed price of $65 a day. The engineer and fireman had previously been hired by the defendant, had been in its employ for many months, and were thoroughly familiar with the process of operating the shovel. The defendant continued to pay their wages after they had been set to work upon the excavation in question. The defendant likewise continued, with its own funds, to pay for the fuel necessarily employed to operate the shovel. The Powers-Kennedy Company, after the shovel had been placed upon the work, directed the engineer of the shovel where to make excavations. It gave no directions as to the details of the work, such as firing the boiler, regulating the steam pressure, applying the levers to start and stop the machinery, maneuvering the boom and bucket, oiling the machinery, or giving care to the steam shovel to keep it in working order. It was important to the defendant, as the owner of the machine, in order that the life of the machine might be preserved, that the engineer and fireman, in respect to these and other details, perform their work with care, skill and judgment.
[2][3] When originally employed, the...
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