De Haen v. Rockwood Sprinkler Co. of Massachusetts
| Decision Date | 09 February 1932 |
| Citation | 258 N.Y. 350,179 N.E. 764 |
| Parties | DE HAEN v. ROCKWOOD SPRINKLER CO. OF MASSACHUSETTS et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by Irene C. De Haen, as administratrix of the goods, chattels, and credits of Mathew T. Landy, deceased, against the Rockwood Sprinkler Company of Massachusetts, the Turner Construction Company, Inc., and another. From a judgment (234 App. Div. 680, 252 N. Y. S. 935), affirming a judgment of the Trial Term entered on a verdict of a jury in favor of plaintiff, defendants appeal. The affirmance as to the defendant Turner Construction Company, Inc., was by a divided court. The affirmance as to the other defendants was unanimous, and the appeal by them is by permission of the Appellate Division.
Affirmed.
Appeal from Supreme Court, Appellate Division, First department.
Walter G. Evans and John P. Smith, both of New York City, for appellant Rockwood Sprinkler Co.
Bertrand Pettigrew and Walter L. Glenney, both of New York City, for appellant John F. LeBeau.
Frederick Hulse, of New York City, for appellant Turner Const. Co., Inc.
Archie E. Latto, Leonard F. Fish, and Thomas J. O'Neill, all of New York City, for respondent.
A radiator placed about ten or twelve inches from the edge of an unprotected hoistway and parallel thereto fell down the shaft and killed a man below.
In this action to recover damages for his death, the defendant Rockwood Sprinkler Company has been held liable on the ground that its servants negligently struck the radiator and thus brought about the fall; the defendant LeBeau has been held liable on the ground that his servants negligently placed the radiator in dangerous proximity to the shaft; and the defendant Turner Construction Company has been held liable on the ground of an omission to fence the shaft in the manner called for by statute.
The liability of the Rockwood Sprinkler Company is hardly doubtful. The negligence of its servants in dislodging the radiator was plainly a contributing cause.
The liability of LeBeau, though not so certain, may fairly be upheld. The inference is a permissible one that it was by the act of his servants, and not by the act of others, that the radiator was left in the place from which it fell. Reasonable men might not unreasonably say that there was warning of peril when a thing so easily dislodged was placed in close proximity to an open and unguarded hoistway. Liability is not defeated by the fact that the thing could not be moved without the co-operative negligence of others. Sweet v. Perkins, 196 N. Y. 482, 90 N. E. 50. One may not place an engine of destruction in a position where a heedless touch by some one else will awaken its destructive power. Cf. Teasdale v. Beacon Oil Co., 266 Mass. 25, 28, 164 N. E. 612;Pastene v. Adams, 49 Cal. 87;Lane v. Atlantic Works, 111 Mass. 136. At least a jury may so find. O'Neill v. City of Port Jervis, 253 N. Y. 423, 433, 171 N. E. 694.
A question even closer arises with reference to the liability of the Turner Construction Company, the general contractor.
Section 241, subdivision 5, of the Labor Law (Consol. Laws, c. 31) as it stood at the time of the accident, contained the following provisions: ‘If elevators, elevating machines or hod-hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used, the shafts or openings in eash floor shall be inclosed or fenced in on all sides by a barrier of suitable height, except on two sides which may be used for taking off and putting on materials, and those sides shall be guarded by an adjustable barrier not less than three nor more than four feet from the floor and not less than two feet from the edges of such shafts or openings.’
The violation of a statute calling for a prescribed safeguard in the construction of a building does not establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury. Am. Law Inst., Restatement of Torts [No. 4], § 176; Lang v. New York Cent. R. Co., 227 N. Y. 507, 125 N. E. 681;Id., 255 U. S. 455, 41 S. Ct. 381, 65 L. Ed. 729;Boronkay v. Robinson & Carpenter, 247 N. Y. 365, 160 N. E. 400;DiCaprio v. New York Cent. R. Co., 231 N. Y. 94, 131 N. E. 746, 16 A. L. R. 940.
The chief object of this statute is to protect workmen from the hazard of falling into a shaft. We cannot say, however, that no other hazard was...
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