Masciarelli v. Powell

• Decision Date: 11 July 1968
• Parties: Anthony MASCIARELLI, Plaintiff-Appellant, v. Walter L. POWELL, d/b/a American Fence and Protection Company, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 967

291 N.Y.S.2d 967

30 A.D.2d 342

Anthony MASCIARELLI, Plaintiff-Appellant, v. Walter L. POWELL, d/b/a American Fence and Protection

Company, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

July 11, 1968.

Leland Stuart Beck, Mineola, for appellant.

William F. McNulty, New York City, of counsel (Samuel F. Simone, New York City, attorney) for respondent.

Before BOTEIN, P.J., and EAGER, CAPOZZOLI, RABIN and McNALLY, JJ.

McNALLY, Justice.

This is an appeal by plaintiff from a judgment of dismissal after a jury trial of a personal injury action. The jury returned a verdict in the sum of $175,000. The court granted defendant's motion to set aside the verdict and dismiss the complaint. We hold the trial judge properly dismissed the complaint because plaintiff failed to establish a case of actionable negligence, and plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff was an employee of Grow, Catapano & Orlando, general contractors engaged in the construction of a portion of the Van Wyck Expressway, in the Borough of Queens, including an exit ramp for automobiles. Defendant, Walter L. Powell, doing business as American Fence and Protection Company, was a subcontractor of Grow, Catapano & Orlando for the installation of guard rails on each side of the concrete roadbed of the ramp. The guard rails were to prevent motor vehicles from going over the sides of the ramp. Plaintiff was working on a ledge located outside a section of the guard rail previously installed by employees of defendant on the morning of the accident. The guard rails were not securely attached to the vertical aluminum posts supporting them. Plaintiff, in an endeavor to pull himself up from a kneeling to a standing position, took hold of the end of a rail, which became disengaged from the post, to which it was not yet securely attached, and he fell from the ledge. The work plaintiff was performing had no connection whatsoever with the installation of the guard rails.

At the close of the proof, the trial judge reserved decision on the motion of defendant for a dismissal and for a directed verdict, and thereafter submitted the case to the jury solely on the theory that the defendant may have been guilty of common law negligence in not foreseeing the occurrence of the accident resulting in plaintiff's injury. Plaintiff claims that the proof adduced at the trial was sufficient to support his cause of action against defendant based on the theory of common law negligence.

Immediately before the accident plaintiff and fellow employees were positioning a 50-foot long metal concrete form on the ledge to permit the pouring of a second or final layer of concrete. The second or final layer of concrete would raise the ledge to an elevation 10 inches higher than that of the concrete roadbed of the ramp. The 50-foot long metal concrete form came in two sections, which were separately hoisted to the ledge by means of wire cables attached to a hoisting crane. They were then aligned and bolted together. This operation required the services of 4 men. Two of the men handled the tag lines used to guide the two sections of the metal form into their proper position on the ledge. The other two bolted the two sections together after they were aligned. Plaintiff was one of the two employees assigned to bolt the two sections of the metal concrete form together after they were hoisted to the ledge. As stated previously, this work has no connection with the installation of the guard rails.

The guard rails had been installed by employees of defendant that very morning. The vertical posts supporting the guard rails were 5 inches wide, with U-shaped slots running through them to receive the ends of the horizontal rails. Some of the rails passed all the way through these slots and then continued on the next vertical post, and others ended at a point inside the slots. Each rail was attached to the vertical post supporting it by set screws. At the time of the accident the rails were not finally adjusted in the slots in the vertical posts supporting them. The set screws which secured them to the post were not wrench-tightened until the final layer of concrete on the ledge of the ramp had been poured and hardened. The contract required the guard rails to be aligned with the ledge of the ramp. This could not be done until the final layer of concrete was poured on the ledge and the concrete had hardened. At the time of the accident plaintiff was on the ledge of the ramp bolting together the two sections of the metal concrete form which had previously been hoisted to the ledge.

It is the settled law of this state that one who uses any part or instrumentality for a purpose for which it was not intended to be used does so at his peril. (Gasper v. Ford Motor Co., 13 N.Y.2d 104, 111, 242 N.Y.S.2d 205, 209, 192 N.E.2d 163, 166; Borshowsky v. B. Altman & Co., 280 App.Div. 599, 116 N.Y.S.2d 299, affd. 306 N.Y. 798, 118 N.E.2d 818; Marshall v. City of New York, 283 App.Div. 918, 130 N.Y.S.2d 867, affd. 308 N.Y. 836, 126 N.E.2d 177; De Jesus v. Chase National Bank of City of New York, 18 A.D.2d 1052, motion for leave to appeal denied 13 N.Y.2d 594, 241 N.Y.S.2d 1025, 191 N.E.2d 680; Mancino v. 1051 5th Ave. Corp., 20 A.D.2d 771, 247 N.Y.S.2d 725, affd. 16 N.Y.2d 527, 260 N.Y.S.2d 642, 208 N.E.2d 452; Italiano v. Jeffrey Gardens Apts., etc., 3 A.D.2d 677, 159 N.Y.S.2d 338, affd. 3 N.Y.2d 977, 169 N.Y.S.2d 737, 147 N.E.2d 245; Collins v. Noss, 258 App.Div. 101, 15 N.Y.S.2d 475, affd. 283 N.Y. 595, 28 N.E.2d 20; O'Connor v. 1751 Broadway, Inc., 1 A.D.2d 836, 148 N.Y.S.2d 494, affd. 2 N.Y.2d 769, 157 N.Y.S.2d 975, 139 N.E.2d 152; Lefkowitz v. Greenwich Savings Bank, 266 App.Div. 995, 45 N.Y.S.2d 275, affd. 293 N.Y. 711, 56 N.E.2d 729.)

In Gasper, supra, a wrongful death action, plaintiff's intestate, a window cleaner, who was cleaning the windows at defendant's plant, attempted to clean a window on an enclosed bridge or elevated walkway by sitting on a plank which he had placed across the glass face of a horizontally-opened window. The window collapsed under his weight and he fell to the ground about 34 feet below. Even though the evidence established that defendant actually knew that the windows in this part of its plant had previously been...