Walters v. Rao Electrical Equipment Co., Inc.

• Decision Date: 29 July 1942
• Citation: 43 N.E.2d 810,289 N.Y. 57
• Court: New York Court of Appeals Court of Appeals
• Parties: Walters v. Rao Electrical Equipment Co., Inc.

289 N.Y. 57

43 N.E.2d 810

WALTERS

v.RAO ELECTRICAL EQUIPMENT CO. et al.

Court of Appeals of New York.

July 29, 1942.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Warren Walters against Rao Electrical Equipment Company and another for injuries sustained when plaintiff was struck by a piece of pipe.DefendantPsaty & Fuhrman, Inc., cross-complained against defendantRao Electrical Equipment Company upon an indemnity contract.From a judgment, entered March 17, 1941, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department, 261 App.Div. 900, 26 N.Y.S.2d 490, which affirmed so far as appealed from a judgment for plaintiff, against both defendants, entered upon a verdict rendered at a Trial Term, (Steuer, J.) and reversed an order of Trial Term, 21 N.Y.S.2d 403, 174 Misc. 445, granting a motion bydefendantRao Electrical Equipment Company for leave to reargue a motion by defendantPsaty & Fuhrman, Inc., made at the close of the trial, for judgment over against the first named defendant upon cross complaint and upon reargument dismissing such cross complaint and from an order of the Appellate Division denying the motion for reargument, defendantRao Electrical Equipment Company appeals.

Modified and as modified affirmed.

LOUGHRAN and FINCH, JJ., and LEHMAN, C. J., dissenting.Olin S. Nye, Brendan C. Kelly, Malcolm G. Bibby, and Reginald V. Spell, all of New York City, for appellant.

Desmond T. Barry, Edward A. Shandell, and Clarence B. Tippett, all of New York City, for respondent.

Samuel Saline, of New York City, for Rao Electrical Equipment Co., amicus curiae.

CONWAY, Judge.

Plaintiff sued Psaty & Fuhrman, Inc., hereinafter called general contractor and Rao Electrical Equipment Co., hereinafter called subcontractor for personal injuries alleged to have been sustained through their negligence.The general contractor served a cross-complaint against the subcontractor upon an indemnity agreement to which reference will be made hereafter.The jury rendered a verdict against both defendants and the trial court thereafter dismissed the cross-complaint.The Appellate Division affirmed the judgment for plaintiff against the two defendants but reversed the order of the trial court dismissing the cross-complaint.

Plaintiff was employed as a riveter by a third contractor and at the time he suffered his injuries was engaged in work at the base of a column on the ground floor of a building which was being erected at the World's Fair in Queens County.A piece of pipe used as a conduit for electric wiring fell from the hand of an employee of the subcontractor at work on the floor above.Harm would not have come to the plaintiff, however, had the general contractor thoroughly planked over the steel beams upon which the structural steel work was being erected.

The Labor Law,Cons.Laws, ch. 31, section 241, subdivision 4, provides: ‘All contractors * * * when constructing * * * buildings * * * shall comply with the following requirements:

‘4.If the floor beams are of iron or steel, the entire tier of iron or steel beams on which the structural iron or steel work is being erected shall be thoroughly planked over to not less than six feet beyond such beams, except spaces seasonably required for proper construction of the iron or steel work, for raising or lowering of materials or for stairways and elevator shafts designated by the plans and specifications.’

There had not been compliance with that subdivision by the general contractor.On the contrary, a four inch space adjacent to the column had been left unplanked.It was through that opening that the piece of pipe descended upon the plaintiff.

The contract of indemnity entered into between the general contractor and the subcontractor contained the following clause: ‘22.Should any person, or persons, or property be damaged or injured by the Subcontractor, or by any person, or persons, employed under him, in the course of the performance by him of this agreement or otherwise, whether by negligence or otherwise, said Subcontractor shall alone be liable, responsible and answerable therefor, and does hereby, agree, to and with the said Contractor, to hold harmless and indemnify the Contractor of and from all claims, suits, actions, costs, counsel fees, expenses, damages, judgments or decrees by reason thereof.’(Emphasis supplied.)

The underlined words clearly indicate that the clauses of which they are a part were modified by that portion of the paragraph in which the subcontractor assumed liability for the acts of any person employed by him which should result in injury or damage to person or property.The italicized words would be meaningless unless the liability of the subcontractor were subject to that qualification and construction.Any intention to extend the liability of the subcontractor beyond that limit, clearly defined in the quoted paragraph, would have had to be unequivocally expressed.No such intention is here revealed.The subcontractor was not liable for the negligence of the general contractor even though concurrent.Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41, 2 N.E.2d 35, 37.There we pointed out, citing cases: ‘It is a general rule long established that contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms.’

The failure of the general contractor thoroughly to plank over the steel beams was a breach of a primary...