Godulas v. New York Transit Authority
| Decision Date | 19 May 1959 |
| Citation | 188 N.Y.S.2d 230,18 Misc.2d 831 |
| Parties | Kostos GODULAS, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant. NEW YORK CITY TRANSIT AUTHORITY, Third Party Plaintiff, v. George CAMPBELL, Jane Campbell, Marian Campbell and Anita Ponte, individually and as partners doing business under the name and style of George Campbell & Co., Third Party Defendant. Esther CHANEY, Administratix of the goods, chattels and credits of Walter Chaney, deceased, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant. NEW YORK CITY TRANSIT AUTHORITY, Third Party Plaintiff, v. George CAMPBELL, Jane Campbell, Marian Campbell and Anita Ponte, individually and as partners doing business under the name and style of George Campbell & Co., Third Party Defendants. |
| Court | New York Supreme Court |
Zelby & Burstein by Joseph H. Sand, New York City, of counsel, for plaintiff Godulas.
William D. Van Pelt by Barnet S. Blume, New York City, of counsel, for plaintiff Chaney.
Daniel T. Scannell, Brooklyn, by Emanuel Friedman, New York City, for N. Y. City Transit Authority.
Rudser & Fitzmaurice by William P. Rafferty, New York City, for Campbell.
The actions herein, which were tried jointly before me, are brought against the defendant, New York City Transit Authority, by Esther Chaney, as administratrix of the goods, chattels and credits of Walter Chaney, deceased, for the wrongful death of said Walter Chaney and for his conscious pain and suffering, and by Kostos Godulas, for damages for personal injuries.
Decision was reserved on motions made by the defendant and third party defendant to dismiss the complaints and for directed verdicts, and the case was submitted to the jury. Verdicts having been rendered in favor of both plaintiffs, the defendant and third party defendant have moved to set aside the verdicts.
All motions on which decision was reserved are hereby denied.
The uncontradicted facts are to the effect that on May 10, 1955, both the decedent and plaintiff Godulas were working as painters at the 181st Street station of the Independent Subway Line, operated and controlled by the defendant, New York City Transit Authority. They were the employees of George Campbell & Co., the third party defendant herein, an independent contracting firm engaged under a contract to perform certain painting work for the defendant. The accident involved occurred on the afternoon of that date, at which time both men were working at the north end of the station, near the 184th Street entrance, on the southbound side of the mezzanine platform. They were engaged in painting a ceiling over a flight of steps leading from the mezzanine platform to the station platform below. The two men were working from rigging comprised of planks, called kickers, and which might commonly be referred to as scaffolds. The kickers involved, and the evidence indicates that there two were such kickers or planks, were supported by ladders and the guard railing surrounding the stairwell. More specifically, one kicker, over twenty feet in length, ran from the rung of an extension ladder, located at the foot of the staircase on the station platform, to the rung of a stepladder standing on the stairway itself. Extending perpendicularly from that kicker was a second kicker which ran to the iron guard railing surrounding the stairwell. The end of the second kicker projected some three feet beyond the railing into the mezzanine passage area. The stairwell area involved, known as Stairwell, P-15, included the flight of stairs above which the painting was being done, and another stairway some ten feet away, also leading from the mezzanine to the station platform below. It was the stairwell for southbound trains nearest to the 184th Street entrance of the station, and was the usual stairwell used by southbound passengers to get to the station platform below.
At approximately 2:15 P.M., while both Chaney and Godulas were working from the kickers, a passenger coming through the mezzanine passage area struck the end of the kicker which extended into that mezzanine area, causing both men to fall from the kickers to the station platform below, a distance of approximately twenty feet. Chaney, who fell first onto the roof of an incoming train, and then to the station platform, died in a hospital later that afternoon; and Godulas, who fell directly to the station platform below, sustained severe injuries. The kickers did not fall when the men did.
The evidence indicates that the immediate entrances to the stairways comprising the stairwell were blocked off. Factually, the most disputed issue is whether there were ropes around that portion of the mezzanine passageway where the kicker projected out three feet past the railing, or whether the projecting end of the kicker was completely exposed and unprotected. There is testimony on behalf of the plaintiffs which indicates that this area was unroped and unguarded, with nothing to prevent passengers from coming into that immediate vicinity. Such testimony was given by plaintiff Godulas and by Schlosser, the person who bumped into the plank. Schlosser further testified that at the time of the accident there were about a dozen or more people around him coming through the mezzanine passageway, and that another passenger brushed against him, causing him to lose his balance and hit the projecting end of the kicker. There is testimony from other witnesses to the effect that the area surrounding the end of the kicker was roped off, although such testimony varies as to the exact manner of such roping off, and other details.
During the painting operation three of defendant's employees were operating as flag men on the station platform and tracks. Their function was to protect the painters from train movements within the station, and they used safety signals and other equipment for that purpose.
The evidence further indicates that the defendant had one Peter McGuire continually on the job as a paint inspector. He testified in his examination before trial, portions of which were read at the trial, that he was on the job daily from 7 a. m. to 4 p. m., that it was his duty to see that the defendant got a good paint job according to specifications, and that as part of his job he observed the method and means used in doing the work. He also testified that it was his duty to see that the painters did not interfere with the passengers, and in that connection he would tell them to rope off the area where they were working if they did not rope it off themselves. Plaintiff's witness Berman, the Union representative on the job for Campbell, in referring to McGuire's duties testified that it was the inspector's job to see that all safety precautions were taken, that the painters were not too near the track and that he would check the rigging to see that the ladders were firm and secure.
While the evidence indicates that McGuire was not present at the time of the accident, and he stated that he did not recall seeing the rigging set up, he did testify that when he left, at about one o'clock of that afternoon, he knew that the painters were working around the stairway.
In response to the question by counsel for Chaney:
'Were you aware when you left the platform at about 1:00 o'clock that the painters would be working on the ceiling that afternoon?'
McGuire responded:
'Well, I imagine if they were around the stairway and they had the stairway closed that they would work around the ceiling, yes.'
As to his qualifications, he testified that he was 'familiar with all the rigging that a painter uses pertaining to that kind of work'. He also admitted that part of his duties included advising the flagmen where the painters would be working. There is testimony on the part of defendant's witness, Poitras, Campbell's foreman on the job, that the scaffolding involved was put up in the morning, which would have been while McGuire admittedly was present.
In connection with the rigging itself, Poitras testified that it was an approved method of putting up the scaffold. His testimony in regard to the extension of the kicker beyond the end of the railing was that it 'has to extend over the rail, for safety purposes'. Plaintiff's witness, Berman, also testified that this was the proper type of rigging for that spot. McGuire, too, indicated that this was the usual type of scaffold for painting ceilings.
The only testimony to the effect that there was anything unsafe about the rigging was Berman's testimony that it was bad practice not to tie down the ends of the kickers.
The court submitted the case to the jury on the theory that defendant owed to these men, employees of an independent contractor, the duty of exercising reasonable care to make safe the place of work provided by it and the ways and approaches to the place of work. The jury was clearly instructed that the scaffold, or kickers, on which the men were working, were pieces of equipment or apparatus supplied by the contractor, and that, with regard to such equipment or apparatus, defendant had no duty to make them safe. The jury was further instructed that with regard to the two men here involved, the defendant did have a duty to exercise reasonable care in maintaining the ways and approaches that were necessary and suitable for them to perform their duties in a condition of reasonable safety.
Any discussion of negligence in the instant case must necessarily determine what duty was owed by the defendant to the decedent and Godulas. "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury',' (Palsgraf v. Long Island R. Co., 248 N.Y.339, 162 N.E. 99, 59 A.L.R. 1253). The facts here present focus attention on the 'duty to provide a safe place to work'.
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