McGlone v. William Angus, Inc.

• Decision Date: 08 May 1928
• Citation: 248 N.Y. 197
• Court: New York Court of Appeals Court of Appeals
• Parties: BERNARD McGLONE, Appellant, v. WILLIAM ANGUS, INC., Respondent, Impleaded with Others.

248 N.Y. 197

161 N.E. 469

McGLONE

v.WILLIAM ANGUS, Inc., et al.

Court of Appeals of New York.

May 8, 1928.

Action by Bernard McGlone against William Angus, Inc., and others.Judgment of nonsuit was affirmed by the Appellate Division(222 App. Div. 818, 226 N. Y. S. 857), and plaintiff appeals.

Reversed, and new trial granted.

Andrews, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

William V. Hagendorn, Edwin L. Smart, and R. W. Barth, all of Brooklyn, for appellant.

E. C. Sherwood and Clarence S. Zipp, both of New York City, for respondents.

CRANE, J.

The evidence in this case is decidedly unsatisfactory.The parties evidently took much for granted and with their understanding of the situation read into the record much that we cannot see.However, there is sufficient in my judgment to make out a cause of action; that is a question for the jury.The girls high school, at Classon avenue, between President and Union streets, Brooklyn, N. Y., was on the 14th day of March, 1924, in the course of erection.The defendantWilliam Angus, Inc., was engaged in setting the stone thereon.The Dickens Erecting Company was erecting the iron work, or a portion of it.The plaintiff was employed by the Dickens Erecting Company and was obliged to climb up the iron girders and walk over the iron framework.On the second floor of the structure of the Angus Company had placed boards across the iron beams forming a scaffold upon which to place the derricks to raise the stone.The plaintiff in going for his tools, walking along the narrow beams, stepped upon this planking erected by the Angus Company, which gave way under him.He fell to the basement and was badly hurt.The planks had been insecurely placed on the beams and a coil of wire, it is said, hid the defects.There is no dispute apparently that this planking or scaffold gave way, and that the plaintiff was dropped to the cellar.

[1] Negligence is gauged by the ability to anticipate.The Angus Company apparently knew that its men were not the only ones at work upon the building.As the iron work went up, the stone work soon followed.Both classes of employees were working together.When the Angus Company placed boards over the iron beams forming a scaffold or flooring for its derricks, could it reasonably anticipate that other workmen on the structure would walk over the flooring?On the evidence this was a question for the jury.The last words in the case given by the foreman rigger of the Angus Company indicate what he would anticipate under such conditions:

‘Q.Did you ever tell any of the workmen on the job, that is, workmen of other contractors, that they should not walk across or use the platforms?A.No; because that would be useless.’

I take this answer to...