Kennedy v. Friederich

• Decision Date: 01 November 1901
• Citation: 61 N.E. 642,168 N.Y. 379
• Parties: KENNEDY v. FRIEDERICH et al.
• Court: New York Court of Appeals Court of Appeals

168 N.Y. 379

61 N.E. 642

KENNEDY

v.FRIEDERICH et al.

Court of Appeals of New York.

Nov. 1, 1901.

Appeal from supreme court, appellate division, Fourth department.

Action by William J. Kennedy against John J. Friederich and others. From a judgment of the appellate division (61 N. Y. Supp. 1140) affirming a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Reversed.

William Nottingham, for appellants.

M. E. Driscoll, for respondent.

HAIGHT, J.

This action was brought to recover damages for a personal injury. The defendants were contractors engaged in the construction of a large building known as the ‘University Block,’ in the city of Syracuse. The building was to be 10 stories high, and at the time of the accident the walls were up between 8 and 9 stories. The building was bounded on the east by Warren street, on the north by Washington street, on the west by Bank alley, and on the south by the Snow Building. The whole site was inclosed by a board fence from 10 to 14 feet high, placed in the street outside of the curb line. To this inclosure there were four gates, one located in each corner, through which entrance could be made to the building. There was a basement 12 feet deep below the ground floor. In the center of the building was a temporary elevator constructed from the basement up through the building, operated by a rope, which was used for the hoisting of iron, bricks, mortar, window frames, lumber, and the like needed by the workmen above. The material used in the building was drawn in through the southeast gate, unloaded about the center of the building on the south side, the teams then passing out of the southwest gate into Bank alley. The material so drawn was taken from the wagon by wheelbarrows, carts, and the like, over temporary planks laid upon the joists to the elevator platform, and then carried up on the elevator to the place where it was designed for use. The permanent floor had not yet been laid upon the ground floor over the basement, but through some portions of the building planks had been laid, over which the work was carried on. The plaintiff entered the employment of the defendants on a Friday at noon. He worked that afternoon, the next day, and the following Monday with the masons up in the building. Monday night he quit work, and on the Saturday evening following, which was the 4th day of December, 1897, shortly after 5 o'clock he entered the building, with a companion named James Shaw, for the purpose of getting his pay. They entered at the southeast gate, passed through the building diagonally towards the center; then walked across the elevator platform, which, at that time, was on a level with the ground floor; passed on to the north side of the building, where the office was located, and there the plaintiff received his pay. He then returned through the building, walked some five or six feet ahead of his companion, until he reached the elevator shaft, into which he walked, falling to the bottom of the basement, and receiving the injuries for which this action is brought. He tells us that during the time he was at work the elevator platform mornings was at the ground floor, and that he found it there each night when he came down the ladder from his work above. He further tells us that he had seen a number of persons cross over the elevator when passing through the building when it was in place upon the ground floor, but that it was in almost constant use during the daytime, in being loaded or unloaded, or in carrying material to the upper floors of the building. There is some conflict in the testimony as to where the elevator was at the time of the accident. One of the plaintiff's witnesses...