Donohue v. East River Mill & Lumber Co.

• Decision Date: 12 July 1918
• Citation: 224 N.Y. 149,120 N.E. 117
• Parties: DONOHUE v. EAST RIVER MILL & LUMBER CO.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 149

120 N.E. 117

DONOHUE

v.EAST RIVER MILL & LUMBER CO.

Court of Appeals of New York.

July 12, 1918.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Catherine Donohue, as administratrix, against the East River Mill & Lumber Company. From a judgment of the Appellate Division (171 App. Div. 935,156 N. Y. Supp. 365), reversing a judgment entered on verdict for plaintiff, and dismissing the complaint, plaintiff appeals. Reversed.

George B. Covington, of New York City, for appellant.

Lyman A. Spalding, of New York City, for respondent.

HOGAN, J.

The plaintiff's intestate was employed by defendant in a lumber yard operated and conducted by the latter in the city of New York. On or about January 20, 1913, the intestate, while in the act of ascending to the top of a pile of lumber, fell and as a result thereof was killed. The present action was brought under the Employers' Liability Act (Consol. Laws, c. 31, §§ 200-204) to recover damages for the death of the intestate by reason of the alleged negligence of defendant in the plant, ways, and appliances which were alleged to have been in an improper condition, unsafe and unsuitable for the work the intestate was directed to perform, and by reason of direction of the superintendent in orders to the intestate to proceed to such unsafe place and ways to perform the work.

The plaintiff recovered a verdict at the Trial Term. A motion for a new trial was made by defendant on all the grounds stated in section 999 of the Code of Civil Procedure, except as to the amount of damages. The judgment entered upon the verdict for plaintiff was reversed by the Appellate Division, and the complaint dismissed, on the ground plaintiff failed to show negligence on the part of the defendant and that the death of the intestate was caused by his own negligence.

The lumber business is conducted by defendant upon an extended scale. In the yard in which the intestate was employed, generally speaking, there were from 300 to 400 piles or stacks of lumber. The stack of lumber in question was about 25 or 26 feet high, about 18 feet in width, and from 14 to 15 feet long, composed of timber 3 by 9 inches and from 14 to 15 feet in length. As shown by the evidence adduced on behalf of plaintiff, the customary way of piling such lumber is to place a foundation underneath the front of the pile, which elevates the front about 8 inches higher than the rear end, thus providing a sloping surface, to prevent water lodging on the lumber and destroying it. Every 8 or 10 courses of timber are crossed to admit of air to prevent decay. The sides and face or front of the pile were perpendicular. The rear of the pile was not regular and even like the front and sides, but, by reason of the varying and different lengths, was uneven. The front of the stack of timber where the accident occurred, referred to in the evidence as ‘A,’ faced the west, or Avenue A; the rear faced the east, or river; the south faced Ninety-Third street. Northeasterly of the stack in question was a stack of lumber referred to in evidence as ‘P.’ The southwest corner of the latter stack started some few feet southerly of and near to the northeast corner of stack A in question, and quite close to the same, and ran in a northerly direction. The space south of pile P and east of pile A was vacant.

On the day of the accident one Dinnin was directed, as testified by him, by either the superintendent or Davitt, the foreman, to load a truck with timber from stack A, and the intestate was directed to assist him. The sub-boss, or foreman, was called by the defendant, and testified it was he who gave the orders to Dinnin and the intestate. Dinnin went to the northeast corner of stack A and climbed to the top of the stack by straddling his feet from stack A to the stack P as far as he could work his way up, until he reached a projecting piece of timber near the top and finally landed on top of pile A. In the meantime the intestate remained on the ground. Dinnin was handing down pieces of timber to the intestate, and the latter was engaged in passing the timber to a truck driver, who was on the southerly side near to the southeast corner of stack A. Dinnin called to the intestate to come to his assistance on top of the pile of timber. Thereupon the intestate started to climb up on the easterly or rear end of the stack,...