Caspersen v. La Sala Bros., Inc.

• Decision Date: 06 May 1930
• Citation: 171 N.E. 754,253 N.Y. 491
• Parties: CASPERSEN v. LA SALA BROS., Inc., et al.
• Court: New York Court of Appeals Court of Appeals

253 N.Y. 491

171 N.E. 754

CASPERSEN

v.LA SALA BROS., Inc., et al.

Court of Appeals of New York.

May 6, 1930.

Action by Olaf Caspersen against the Omaha Realty Company, Incorporated, impleaded with La Sala Bros., Incorporated. From a judgment of the Appellate Division (226 App. Div. 679, 233 N. Y. S. 717) affirming a judgment of the Trial Term dismissing the complaint as to defendant first named, plaintiff appeals by permission.

Reversed, and a new trial granted, with costs to abide the event.

Appeal from Supreme Court, Appellate Division, Second department.

Mansfield Ferry, of New York City, for appellant.

Walter G. Evans and Grattan B. Shults, both of New York City, for respondent.

CARDOZO, C. J.

Plaintiff, a servant of the Otis Elevator Company, was installing an elevator in a building then in course of construction. Beside the elevator well was a shaft for a stairway. The shaft was not visible, however, on the ground floor where the plaintiff was at work, except by lifting up one's eyes and looking to the floors above. There was nothing to mark its presence to the casual observer. Far up in the shaft, on the tenth or eleventh floor, masons, working on a scaffold, were using tiles and bricks. One of the bricks, falling from the scaffold, struck the plaintiff on the head while he stood beneath the shaft, intent upon his work. In this action for damages, two defendants have been joined. One, La Sala Brothers, Incorporated, a subcontractor for the mason work, was the employer of the bricklayers. The other, Omaha Realty Company, Incorporated, the owner of the building, was in substance a general contractor, maintaining general supervision through a superintendent on the scene. Evidence was excluded that bricks had fallen down the shaftway on previous occasions. Evidence was excluded also that protective devices such as screens or warning signs were customary safeguards. There was a verdict against the subcontractor, and a dismissal of the complaint against the owner. From the affirmance of the dismissal, this appeal has been allowed.

We think the owner of the building, acting as general contractor, was under a duty to the plaintiff to use reasonable care in maintaining the approaches to the elevator in a condition of reasonable safety, and is answerable in damages if the duty was ignored. Liability is not defeated by the fact that the plaintiff was a servant of a subcontractor, and not a servant of the owner. He had come into the building in furtherance of the owner's business, and was using ways and approaches necessary or suitable to enable him to go forward with his work. In such circumstances the duty of protection is independent of the relation of servant and employer. This was so at common law. Coughtry v. Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387. It is so today under the statute. Employers' Liability Law (Laws 1921, c. 121), § 2, Consol. Laws, c. 74; Labor Law, § 200, Consol. Laws, c. 31; Hess v. Bernheimer & Schwartz Pilsener Brewing Co., 219 N. Y. 415, 418,114 N. E. 808. ‘If an employer enters into a contract, written or verbal, with an independent contractor to do part of such employer's work, or if such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor's contract with the employer, such contract or subcontract shall not bar the liability of the employer for the injuries to the employees of such contractor or subcontractor, caused by any defect in the condition of the ways, works, machinery, or plant, if they are the property of the employer or are furnished by him, and if such defect arose, or had not been discovered or remedied, through the negligence of the employer, or of some person intrusted by him with the duty of...