Joyce v. Rumsey Realty Corp.
| Decision Date | 24 March 1966 |
| Parties | , 216 N.E.2d 317 John JOYCE, Respondent-Appellant, v. RUMSEY REALTY CORP., Appellant, and H. J. Butler & Bro., Inc., Respondent. RUMSEY REALTY CORP., Third-Party Plaintiff-Appellant, v. MARA CONSTRUCTION CORP., Third-Party Defendant-Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Benjamin H. Siff and Abraham Solomon, New York City, for respondent-appellant.
Copal Mintz and Morris Zweibel, New York City, for appellant and third-party plaintiff-appellant.
John Nielsen and Thomas O. Perrell, New York City, for respondent.
Philip Hoffer, Raymond J. MacDonnell, New York City, Peter T. Affatato, Hicksville, and Rose L. Hoffer, New York City, for third-party defendant-respondent.
At the end of the trial there was, between plaintiff and defendant Rumsey, no unresolved issue as to liability and so a verdict was properly directed for plaintiff against Rumsey, leaving to the jury the fixation of the damages. Rumsey had unquestionably violated the unequivocal command of subdivision 1 of former section 241 of the Labor Law, Consol.Laws, c. 31, that the contractor must complete the flooring as the building progresses. Plaintiff was moving planks on the fourth floor. The first, second and third levels had not been floored over as required by the statute and plaintiff, standing on a plank which broke, fell through the openings into the basement. The duty imposed by the statute and violated by defendant Rumsey was 'a flat and unvarying' one (Koenig v. Patrick Constr. Corp., 298 N.Y. 313, 318, 83 N.E.2d 133, 135, 10 A.L.R.2d 848) and again as we said in Koenig: 'For breach of that duty, thus absolutely imposed, the wrongdoer is rendered liable without regard to his care or lack of it.' Or, as we put it in Major v. Waverly & Ogden (7 N.Y.2d 332, 334, 197 N.Y.S.2d 165, 167, 165 N.E.2d 181), a violation of such a statute is 'conclusive evidence of negligence'. Conclusive evidence of negligence calls for a directed verdict. It is of course, undeniable that the statute is for the protection of workers situated as was plaintiff (see Bergen v. East 84th St. Constr. Corp., 16 N.Y.2d 644, 261 N.Y.S.2d 80, 209 N.E.2d 121).
That plaintiff was caused to fall by the breaking of a plank is beside the point. No one is ever physically injured by the existence of an unguarded opening. Something must project him into the hole but that something cannot be more than a concurrent cause of the injury. The statute puts absolute and unconditional liability on the contractor and in favor of the workman who falls through the floor opening which ...
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