Capasso v. Woolfolk

• Decision Date: 19 June 1900
• Citation: 163 N.Y. 472,57 N.E. 760
• Parties: CAPASSO v. WOOLFOLK et al.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 472

57 N.E. 760

CAPASSO

v.WOOLFOLK et al.

Court of Appeals of New York.

June 19, 1900.

Appeal from supreme court, appellate division, First department.

Action for injuries by Arcangelo Capasso against Edward G. Woolfolk and others. From an order of the appellate division (49 N. Y. Supp. 409), reversing an order dismissing the complaint at the close of the case and ordering a new trial, defendants appeal. Reversed.

Plaintiff brought this action for personal injuries received by him while employed by the defendants, and which he alleges to have been caused by the negligence of the latter. The defendants, as contractors, were engaged in lowering the tracks of the New York & New Haven Railroad Company,-a work which had been going on for some two years. During that time the plaintiff had been working for them, and at the time when he received the injuries in question, he was a member of what was called the ‘night gang.’ The duty of those belonging to the night gang was to pick up and remove loose stone and rock which had been left in the cutting after blasts. Upon the evening in question plaintiff says that one of the defendants gave him orders to go to work, and that at about half past 3 in the morning a large stone, becoming loosened, fell from the top of the bank above him upon his foot. A witness in his behalf, who was one of the workmen, was examined as to the manner in which the blasting was generally accomplished, and how many holes were drilled for a blast. He was then asked this question: ‘Now, after the blastings occurred, or went off, what did they do, if anything, with regard to the examination of the rocks, before sending the men to work?’ The answer given was: ‘The contractors never did anything. They never sent anybody around.’ No other evidence was given on the part of the plaintiff with respect to the work of inspection. On behalf of the defendants, it was testified by the foreman in charge of the blasting that, after the blasts of the day preceding the accident, they had barred down anything that was loose or dangerous; that it was customary to do it; that he had it done on that day; and that there was nothing when he left at 6 o'clock that was dangerous or likely to fall. The foreman of the night gang, in which the plaintiff worked, testified, concerning this stone or rock on the evening in question, that he had called the men up, and tried to turn the rock with bars, but could not move it; that an effort was made to pull the rock over with the derrick, but neither by using the derrick, nor by the men with bars, could the rock be moved. At the conclusion of the case the request of the plaintiff to go to the jury upon certain questions was denied, and the defendants' motion to dismiss the complaint was granted; to which the plaintiff excepted. At the appellate division, where the exceptions were ordered to be heard in the first instance, the plaintiff's exceptions were sustained, and a new trial ordered. From the order of the appellate division the defendants appealed to this court, giving the usual stipulation for judgment absolute in the event of affirmance.

Perry D. Trafford, for appellants.

T. F. Hamilton, for respondent.

GRAY, J. (after stating the facts).

I am unable to distinguish this case from that of Perry v. Rogers (decided by us since the decision of the appellate division in this case) 157 N. Y. 251, 51 N. E. 1021. In that case the plaintiff was directed by the foreman in charge of the men to go up ‘on the bench,’ which had been created in the side of a ledge of rock by blasting, for the purpose of cleaning it off. While so engaged, a large stone fell out of the wall, some six or seven feet above the bench, and inflicted upon him the personal injury for which he recovered a judgment. The judgment was reversed in this court, upon the ground that the master had furnished everything that he was obliged to, including competent employés and a skilled foreman; that any omission on the part of the foreman to notify the plaintiff to pry off the piece of rock that fell upon him was not attributable to the master, as it related to an ordinary detail of the work in which the foreman and the others were engaged; and that the negligence of the foreman in that respect...