Rooney v. Brogan Const. Co.

• Decision Date: 05 January 1909
• Citation: 86 N.E. 814,194 N.Y. 32
• Parties: ROONEY v. BROGAN CONST. CO.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 32

86 N.E. 814

ROONEY

v.BROGAN CONST. CO.

Court of Appeals of New York.

Jan. 5, 1909.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Margaret Rooney, as administratrix, against the Brogan Construction Company. From a judgment of the Appellate Division (121 App. Div. 919,106 N. Y. Supp. 1143), unanimously affirming a judgment for plaintiff, defendant appealed by permission. Reversed, and new trial ordered.

I. R. Oeland, for appellant.

Gilbert D. Lamb, for respondent.

GRAY, J.

The plaintiff brought this action for the recovery of the damages sustained by her through the death of her husband, which, as she alleges, was caused by the negligence of the defendant in a failure to comply with the requirements of the labor law of the state that shafts, or openings, in the floors of a building, in the course of construction, shall be inclosed. The defendant was engaged in constructing a building of some 10 stories in height upon its property through the instrumentality of various contractors. In the course of the work a hodhoisting machine or elevator was installed in an opening in the floors, which extended from the basement to the upper floor of the building, for the use of any of the contractors who might arrange therefor with the hoisting company. The deceased was in the employment of one of the contractors, and for a few days before the occurrence of the accident, which resulted in his death, had been engaged in keeping up fires in stoves, placed upon the different floors for the purpose of preventing the fresh plaster from freezing. On the evening in question he came to the ninth floor, in company with another workman, and, while in the act of carrying a stove from one side of the floor to the other, was observed to trip and to fall through the unguarded opening, near which he was passing. He fell to the cellar, and was killed. The flooring of the ninth floor at the time was not finished and the spaces between the joists, or beams had been filled in with ashes, or cinders, of a dark color. The only light was furnished by two gasoline torches which the deceased and his companion were carrying. The duty of the deceased to keep up the fires in the stoves upon the several floors of the building necessarily required him to know the conditions of each floor. The case was submitted to the jury upon the questions of the defendant's negligence and of that of the deceased, and the plaintiff recovered a verdict. The judgment has been unanimously affirmed by the Appellate Division; but leave was given by that court to the defendant to appeal to this court.

There are but two questions for our consideration, and they relate to the correctness of rulings upon requests by the defendant for further instructions to the jurors upon the conclusion of the charge. The court was asked to charge the jury ‘that if they find that he [the deceased] knew the hole was there, and that he knew it was unguarded and knew the condition of the flooring around the hole, and exercised all ordinary care to have known it, then if he knew those facts, as matter of law they must find he assumed the risk, and cannot recover.’ The court ruled: ‘I charge that with the qualification, however, that he must have appreciated all the dangers incident to that condition, and, if they find that he did know those facts and appreciated all the dangers incident to these facts, then as matter of law he assumed the risk.’ To this modification of the instruction requested exception was taken. In obedience to the instruction as given, the jurors, in addition to finding that there was a knowledge of the facts stated, had to find, further, that the deceased must have appreciated the danger of such a situation. This was imposing a greater burden of proof upon the defendant than the court should sanction, and for...