
    Evans v. Vogt & Brothers Manufacturing Co.
    (City Court of Brooklyn—General Term,
    October, 1893.)
    Plaintiff’s son, in defendant’s employ, while at work in an unfinished building, was directed by the foreman to go to an upper floor and get an oil can. After the foreman had used the oil can he told plaintiff’s son to take it back. While on his way up the ladder, which was the only means of getting from one floor to another, he was struck by something falling-through the hatchway. It appeared that he had been fully warned of the dangers lurking around the hatchway, and knew when he went for theoil can that the men on that .floor were “sweeping out,” and was of sufficient age and intelligence to appreciate the risk. In an action by the father to recover for loss of services of his son the plaintiff had a verdict. Held, that as there was no evidence as to how the substance which struck plaintiff’s son came to fall, or who was responsible for its fall, and no proof that it was due to the negligence of defendant or any of its servants, a motion to dismiss the complaint should have been granted.
    Action to recover for loss of son’s services. The opinion states the case.
    
      
      Dailey, Bell & Crane, for plaintiff (respondent).
    
      Charles C. Nadal, for defendant (appellant).
   Osborne, J.

Plaintiff brought this action to recover damages for the loss of services of his son, Edward F. Evans, resulting from injuries alleged to have been caused by the negligence of defendant, in whose employ said son was at the time. Plaintiff complained that the alleged negligence consisted in placing his son in a position of danger, in not providing him with a safe place to work, and in failing to warn him of danger. Plaintiff had a verdict, and defendant appeals-from the judgment entered thereon, and from the order denying motion for a new trial.

Plaintiff’s son was the only witness on behalf of the plaintiff as to the happening of the injuries which he received. It appeared from his evidence that he was fifteen years of age, and that he had been in the employ of the defendant for about three months prior to the date of the accident. Defendant’s business was the manufacture of iron tanks, and plaintiff’s son was employed to heat rivits, and also to run errands. At the time of the accident, defendant was engaged in putting together ¡an iron tank, some fifty or sixty feet long, and twelve or fourteen -feet wide, and about four feet high, on the second floor of a building which was in process of erection on Washington street, New York, for the New York Steam Company, to be used for refrigerating purposes. Carpenters and masons were at work on the building at the time, and the roof had not yet been put on; there were no stairways in the building, and the only means of getting from one floor to another was through a sort of hatchway between two and three feet square, by means of iron rungs built into the wall, thus forming a ladder. Plaintiff’s son had been working in this building about three weeks prior to the accident. On the day of the accident, his forge would not work, and he says that the foreman in charge told him to go up on the fourth floor, where the flooring was then being laid, and get an oil can; this he did, using the iron ladder in the opening for the purpose. He says, that when he got up there, he saw men laying bricks, carpenters were cutting wood and drilling holes ■ in boards or blocks, “ and they were sweeping out too ; ” he brought the oil can down to the place where he was at work, the foreman used it to oil the .forge, and then told him to go back with it again, while on his way up the ladder, and when between the third and fourth floors, “ he felt something hit him on the head,” which rendered him unconscious, and he fell and received the injuries complained of. He further testified that, on a previous occasion, he had seen bricks and pieces of wood, and pieces of boards and logs of wood falling through this hatchway; that, about two weeks prior to the accident, his foreman had told him not to be fooling around the hatch, that he might get hit with something, might get hurted,” and that, on another occasion, he saw William Yogt go up the hatchway, and that he-said, that it was a d-d dangerous place, as d-d a place as he ever-got up.”

At the close of the plaintiff’s case defendant’s counsel moved to dismiss the complaint, which motion was denied, and an exception thereto was taken.

After a very careful examination we have come to the conclusion that the learned trial judge erred in denying the motion to dismiss the complaint. We fail to see wherein the defendant was negligent. The fact that plaintiff’s son was set to work in an unfinished building was certainly not a negligent act on defendant’s part; that there was a chance that some of the other workmen on the building, not under defendant’s control, might accidentally, or even carelessly, drop some object from the upper floors was an incident almost inseparable from the erection of a large building, and was, we think, one of the risks incident to the employment of this lad at the building; it was also a patent risk, one of which plaintiff’s son was well aware, for he testified, as before stated, that he had been fully warned of the dangers lurking around this hatchway, and the chance of his getting hurt there, and he was of sufficient age and intelligence to appreciate the risk.

Nor do we think that the defendant violated its duty to plaintiff’s son in not furnishing him a safe place to work. In fact, the tank was the place where he was set to work, and there is no claim that that was unsafe. We do not think that the passing up and down the ladder can be construed or designated as his place to work, but rather as a route or means of transit by which he was to get to his place of work. Suppose that, as plaintiff’s son was entering this building on his way to his work on the tank, some mason at work above had let a brick fall which struck and injured this lad, surely that would not have constituted negligence on defendant’s part, and yet, if plaintiff’s contention is sound, defendant would be liable.

There is an entire lack of evidence as. to how the substance which struck plaintiff’s son came to fall, or who was responsible for its falling. Certainly, there is no proof that it was due to the negligence of the defendant or any of its servants, and, in the absence of such proof, there was nothing on which to base a verdict in favor of the plaintiff. Wall v. Jones, 45 N. Y. St. Repr. 687. The case of Ford v. Lyons, 41 Hun, 512, cited by the learned counsel for the respondent, is not in point; in that case, plaintiff’s intestate was set to work in the cellar, in a place where broken pieces of brick fell from the upper portion of the building, where defendant had full control of the erection, and complaint had been made as to the insüíñcient protection of the covering of the men at work in the cellar; there it was clearly a case where the actual place of work was unsafe.

For the reasons stated, we think that the exception to the denial of the motion to dismiss the complaint was well taken. Having come to this conclusion, it is unnecessary for us to discuss any of the other exceptions in the case.

Judgment reversed and new trial ordered, with costs to abide the event.

Clement, Ch. J., concurs.

Judgment reversed, new trial ordered.  