Employers' Liability Assur. Corp. v. Empire City Iron Works, Inc.

• Decision Date: 16 March 1959
• Citation: 184 N.Y.S.2d 728,7 A.D.2d 1012
• Parties: EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Appellant, v. EMPIRE CITY IRON WORKS, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 728

184 N.Y.S.2d 728

7 A.D.2d 1012

EMPLOYERS' LIABILITY ASSURANCE CORPORATION, Appellant, v. EMPIRE CITY IRON WORKS, INC., Respondent.

Supreme Court, Appellate Division, Second Department.

March 16, 1959.

Shure & Bruder, New York City, for appellant, Edward Alan Shure, New York City, of counsel.

John P. Smith, New York City, for respondent, John Nielsen, New York City, of counsel.

Before NOLAN, P. J., and BELDOCK, MURPHY, UGHETTA and HALLINAN, JJ.

MEMORANDUM BY THE COURT.

In January, 1948, and for some time prior thereto, Consolidated Edison Co., Inc., owner and general contractor, was engaged in construction work at its gas plant in the Borough of The Bronx, City of New York. United Engineers & Constructors, Inc., was a subcontractor, as was Empire City Iron Works, Inc. On January 28, 1948, one McShane, an employee of Empire, was unloading a truck and was injured when a piece of fabricated steel fell and struck him, causing him to lose his right arm and to sustain other injuries. Empire was the owner of a hand winch which was installed on the roof and was being used by the employees of United, with the permission of Empire, to raise the fabricated steel. No barriers or warning signs had been placed on the ground below. When the steel had been lifted about 20 feet from the ground, a loud snap was heard, the handles of the winch flew out of the control of the employees of United, and the steel fell to the ground, turned over a few times and hit McShane. He thereafter commenced an action to recover damages for personal injuries against Consolidated and United, alleging in part that they were negligent in that they failed to take proper precautions and safeguards to prevent him from being struck by a load of iron or steel which was carelessly being raised by their employees and, further, in that they directed him to work under dangerous and unsafe conditions and failed to provide him with a safe place to work.

Before McShane's action came to trial it was settled by the payment of $49,000 to him by the Employers' Liability Assurance Corporation, the insurance carrier of Consolidated and United, in their behalf. The carrier then brought this action against Empire City Iron Works, Inc., as subrogee or Consolidated and United, to recover the money paid in settlement of the McShane suit, upon the ground that they were passively negligent, while Empire was actively negligent (first cause of action) and, further, that Empire had agreed to indemnify Consolidated (second cause of action).

The case was tried before the court without a jury. Empire rested at the end of Employers' case and moved to dismiss upon the ground, among others, that Employers' is not entitled to indemnification if there was no liability on the part of either United or Consolidated and if the money was voluntarily paied to buy their peace. The court found that the steel was caused to fall solely by reason of a negligent and faulty weld made by an employee of Empire in the dog or pawl which snapped when the operators of the winch paused to rest, that the defect in the winch was not discoverable on reasonable inspection, that there was no contributory negligence on the part of McShane, and that the settlement based upon the injuries was reasonable. The trial court held, however, that in order to succed Employers' had to show liability on the part of Consolidated and United to McShane, and held further that they owed him no duty, the violation of which had anything to do with the happening of the accident. Since in that view the payment in question was voluntarily made by Employers' in behalf of its insureds to buy their peace, the complaint was dismissed. The appeal is from the judgment entered thereon.

Judgment reversed on the law and the facts, with costs, and judgment granted in favor of appellant as demanded in the first cause of action. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein.

In the briefs it is agreed that there is no evidence of negligence on the part of United in the operation of the winch and that the only issue is whether the trial court's decision that Consolidated owed no duty to McShane, the violation of which had anything to do with the happening of the accident, is supported by the evidence. We find that there was such a duty.

A general contractor, or owner acting as a general contractor, is under a duty to employees of subcontractor to use reasonable care to provide a safe place to work (Caspersen v. La Sala Bros., 253 N.Y. 491, 171 N.E. 754; Wohlfron v. Brooklyn Edison Co., 238 App.Div. 463, 265 N.Y.S. 18, affirmed 263 N.Y. 547, 189 N.E. 691). In the instant case the proof shows that the place where the accident occurred was one of the places provided by Consolidated, the general contractor, as a safe place to work. The proof also shows that the winch was affixed to the roof of the building for a considerable time before the accident and that hoisting operations had taken place on days prior to the occurrence. Therefore, Consolidated was on constructive notice (the record does not show that it had actual notice) that a dangerous operation was being performed on its premises.

It was foreseeable that if an object should fall from the hoist it would fall within a reasonable radius of the spot where it actually hit the ground and within the work area provided by Consolidated. Consequently, Consolidated was negligent in failing to guard the hoisting area by providing protective devices such as...