Pellegrino v. Clarence L. Smith Co.

• Decision Date: 08 April 1919
• Citation: 226 N.Y. 165,123 N.E. 153
• Parties: PELLEGRINO v. CLARENCE L. SMITH CO.
• Court: New York Court of Appeals Court of Appeals

226 N.Y. 165

123 N.E. 153

PELLEGRINO

v.CLARENCE L. SMITH CO.

Court of Appeals of New York.

April 8, 1919.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Cesidio Pellegrino against the Clarence L. Smith Company under the Labor Law. From an order of the Appellate Division reversing a judgment for plaintiff and granting a new trial (176 App. Div. 930,162 N. Y. Supp. 1135), plaintiff appeals. Order of Appellate Division reversed, and judgment of Trial Term affirmed.

See also, 172 App. Div. 922,156 N. Y. Supp. 1138; 173 App. Div. 900,157 N. Y. Supp. 1139.

Charles Oishei, of Buffalo, for appellant.

Arthur K. Wing, of New York City, for respondent.

CARDOZO, J.

This is an action under the Labor Law (Consol. Laws, c. 31) by workman against employer.

On September 22, 1913, the plaintiff was engaged in excavating for the foundations of a building. His hand was crushed by a stone which fell out of the wall as he worked. He had noticed cracks about the stone, and had called them to the attention of his foreman. They were 2 1/2 or 3 inches wide. The foreman told him that there was no danger, and to go on with the work. Simple tests would have shown the insecurity of the stone. The foreman made none. A half hour after the assurance of safety the stone fell.

[1][2] Those are the facts according to the plaintiff's evidence. Many of them are disputed, but the jury accepted the plaintiff's version. The Appellate Division reversed upon the ground that the foreman's conduct was evidence, not of negligence, but at the utmost of error of judgment. We do not share that view. Error of judgment there may have been, but error is not inconsistent with fault. The standard of diligence exacted is that of the typical prudent man. The individual must answer for the consequences when he falls below that norm Maguire v. Barrett, 223 N. Y. 49, 54, 55,119 N. E. 79;Mertz v. Conn. Co., 217 N. Y. 475 477,112 N. E. 166;Williams v. Hays, 143 N. Y. 442, 454,38 N. E. 449, 26 L. R. A. 153, 42 Am. St. Rep. 743. A jury might fairly find that this foreman, however honest his error, had failed in his duty of reasonable inspection. Liability has heretofore been adjudged in other cases upon facts substantially the same. Bitolio v. Bradley Contracting Co., 222 N. Y. 553, 118 N. E. 1052;Campullu v. Bradley Contracting Co., 222 N. Y. 634, 118 N. E. 1053;O'Rourke v. McMullen-Snare & Triest, Inc., 222 N. Y. 719, 119 N. E. 1063;Mullahey v. Dravo Contracting Co., 211 N. Y. 583, 105 N. E. 1091.

[3] We cannot say that the plaintiff is chargeable as a matter of law with contributory negligence. He tells us that he relied upon the judgment of his superior, who had been engaged in the business for upwards of 16 years. Whether reliance was reasonable was a question for the jury. Rice v. Eureka Paper Co., 174 N. Y. 385, 66 N. E. 979,62 L. R. A. 611, 95 Am. St. Rep. 585; Daley v. Schaaf, 28 Hun, 314; Seaboard Air Line Railway v. Horton, 239 U. S. 595, 600, 36 Sup. Ct. 180, 60 L. Ed. 458;McCabe & Steen Constr. Co. v. Wilson, 209 U. S. 275, 282, 28 Sup. Ct. 558, 52 L. Ed. 788.

The order...