
    William Chinn, Respondent, v. The Ferro-Concrete Construction Company, Appellant.
    Fourth Department,
    December 29, 1911.
    Master and servant—negligence —injury by fall of plank—safe place to work—failure to warn of danger—improper method of doing work — contributory negligence—trial — exception not specific.
    Where, in an action by a servant against his master to recover for personal injuries, it appears that the defendant’s foreman in charge of the construction of a concrete building ordered the plaintiff, with knowledge that he had no experience in the work, to assist two other inexperienced men, one of whom directed him to knock out shoring supporting planks upon which concrete floors had been laid, and that the plaintiff’s fellow-servants standing upon ladders which were unsteady were unable to hold a plank after they had pried it loose, swerved it to the side, so that in falling it hit the plaintiff, he makes out a prima facie case, and a verdict in his favor is not against the weight of evidence where the defense offers no testimony.
    Under the circumstances the master might be found negligent in not furnishing a reasonably safe place for the plaintiff to work, notwithstanding ■ that the building was in the process of construction and that the occupation was to some extent hazardous.
    Moreover, the master may be found negligent where he failed to instruct the plaintiff and his fellow-servants as to the way in which the work should be performed, where they were without experience, and were ordered to do the work in the place of others who were familiar with the proper way of doing it.
    Where one of plaintiff’s fellow-servants was so standing upon a ladder that he had to reach above his head to support the end of a wet and slippery plank weighing 100 pounds, the jury were warranted in finding that the plaintiff’s fellow-servant was incompetent, and where the foreman knew how the work was being done to hold the defendant hable for allowing the work to proceed in that dangerous manner.
    The plaintiff cannot be held to have been guilty of contributory negligence as a matter of law where at the time of the accident he was not directly under the plank which fell, having already knocked away the shoring as directed.
    Where a charge as to the obligation of the defendant to promulgate rules was so general that it may have related to a warning, which should have been given to employees, an exception to the charge should specifically call the attention of the court to the defect claimed.
    McLennan, P. J., dissented, with opinion; Williams, J., dissented on the ground that the verdict was excessive.
    Appeal by the defendant, The Ferro-Concrete Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 25th day of March, 1911, upon the verdict of a jury for $12,000, and from said judgment as corrected and amended by an order entered in said clerk’s office on the 26th day of April, 1911, and also from an order entered on the 25th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      A. D. Jenney, for the appellant.
    
      Harlan W. Rippey, for the respondent.
   Spring, J.:

In the summer of 1909 the defendant was engaged in the construction of a large reinforced concrete building on Hart street, in the city of Rochester. The work was carried on by separate gangs of men, each devoted to its specific kind of work. The plaintiff, a young man twenty-seven years of age, was employed with the concrete gang in wheeling concrete and finishing off the floors of that material. The first floor was sixteen feet from the ground, and at the time of the accident most of the false forms used in the process of construction had been removed. There were heavy planks between the girders, each over eighteen feet in length, eight inches wide and two inches thick, which were held in position by supporting shores or posts four inches square resting on the ground, as the concrete floor had not been laid. Concrete had been poured into troughs above these planks and when that had hardened the shores were knocked from under, the braces removed and the planks pried loose with pinch bars and taken down. A wrecking gang had charge generally of the removal of the false work and it was composed of men experienced in that kind of work. Much of the wrecking work had already been done by this gang, but the support was left in the center of each of the heavy planks in one part of the building.

On the morning of the accident, Culp, the foreman in general charge of the work on the building, told Chaney to remove these shores and braces and take down the planks, and Adams was directed to assist him. Neither of these men, as the foreman knew, had had any experience in this work, nor did Culp give them any instructions as to the manner of doing it. Culp directed them to take ladders and carry down these planks. A' little later in the forenoon he told the plaintiff to go over and help Chaney, and the latter directed him to knock out the shoring and carry it off. Chaney and Adams went up the ladders, holding up the end of the plank with bars, and the plaintiff knocked out the shoring and carried it and the braces away, and the other two men pried the planks loose and carried them down. Four planks had been removed in this manner. As they were standing on their respective ladders they were obliged to reach above their heads in order to pry loose and. let down this soggy, heavy plank, and it got away from them. The ladders were not steady, as the ground floor was uneven, and, in the effort to save themselves and the plank from falling, they swerved it to one side and it hit the plaintiff, a nail or spike penetrating his skull and causing injuries resulting in the paralysis of one side and epileptic seizures which will be permanent.

Culp, the foreman, knew of the manner in which this work was carried on and did not attempt to change the method of its performance. He knew the plaintiff was removing the shores and braces, and knew of the inexperience of Chaney and Adams, and that the plaintiff was one of the concrete gang on this building and had had no experience whatever in the work which he directed him to perform until the day he v/as so frightfully injured by the taking down of this heavy plañir. The plaintiff was obeying the direction of Chaney to remove the shore and braces when the plank fell down and injured him. Ho evidence was offered on the part of the defendant, and the plaintiff made out a prima facie case, and the verdict was not against the weight of evidence.

In the first place, the defendant did not furnish a reasonably safe place in the circumstances which the evidence discloses. ■ We appreciate this rule is to he .applied in the light of the fact that this building was in process of construction, and that the business was, to some extent, hazardous, notwithstanding these facts, it was still incumbent upon the defendant to protect its men so far as it bias reasonably able to do so.

In the second place, the men employed to do this work were incompetent and inexperienced. The evidence shows that the men who usually did such work consisted of a wrecking gang and were men familiar with the business and the most feasible and safe way of performing it. Chaney and Adams received no instructions from the defendant. It is not a question of rules; it is a question of failure to warn or instruct the plaintiff, and also Chaney and Adams, as to the way in which this work should be performed, which constitutes the negligence of the defendant.

Third. The way in which the work was done warranted the jury in finding that the men were incompetent. Chaney was on the ladder so that he was obliged to reach above.his head to take hold of his end of this plank, weighing, about 100 pounds, and it was wet and slippery. Culp, the general superintendent, saw the way in Which this was done and did not interfere. He knew that the work was being done in a dangerous manner, and he should not have allowed it to proceed. (O’Brien v. Buffalo Furnace Co., 183 N. Y. 317; Reilly v. Troy Brick Co., 181 id. 399.)

It is not a question of which of two ways is preferable. The jury have found that the method which the defendant permitted to be followed was reckless and careless, and the evidence justified this conclusion.

Fourth. The jury had a right to find that the plaintiff was not guilty of contributory negligence. Three or four of the planks had been taken down before this, and in. each instance he had been directed to carry away the props and supports which he had knocked from under the planks. ■ He did this as soon as they fell down, and the foreman knew about that. This necessarily placed him somewhat under the plank," but considerable time elapsed before the plank came down, and he had plenty of opportunity to obey the direction which was given to him. At the time of the accident he was not directly under the plank which fell, and it dropped down suddenly and without any notice or warning to him and veered off to one side and fell upon him. We cannot say, therefore, as matter of law, that he was guilty of contributory negligence. He was engaged in the performance of his duty in the manner in which he had been performing it with the apparent approval of the defendant, and he was hit and injured by reason of the negligent manner in which the work was performed.

Fifth. The presiding justice at the trial submitted to the jury in a very general way the question whether the defendant should have promulgated rules to govern the employees in this work. This submission may well be held to have related to the instructions or warning which the jury may have found should have been given to the .plaintiff and his coemployees. The exception to this part of the charge was not specific and did not call the attention of the court to the proposition that it was susceptible to the interpretation by the jury of an independent, distinct statement disconnected from the subject of instructions or warnings with which it was collocated in the main charge.

The judgment should be affirmed.

All concurred, except McLennan, P. J., who dissented in an opinion, and Williams, J., who dissented upon the ground of excessive verdict.

McLennan, P. J.

(dissenting):

The accident which is the subject of this action occurred on the 31st day of July, 1909, at about ten o’clock a.,m. At the time and for a considerable period prior thereto, the plaintiff was employed by the defendant as a common laborer arid it was engaged in constructing a large reinforced concrete building in the city of Rochester, N. T. In the erection of such building the defendant employed several hundred men, riiany of them being skilled and expert mechanics and being specially trained to carry on by the most approved method the different parts of the work. There was also employed a number of common laborers, so called, who did not possess any expert knowledge and who were only required to perform certain manual labor not involving any expert skill or knowledge.

At the time of the accident the basement or first story of the building had been practically completed, except that the floor had not been laid and certain planks and timbers, which had been used in making the forms or false work for the construction of the ceiling, had not been removed.

The evidence tends to show and it is practically conceded that in the construction of such ceiling, in making and putting up such forms and false work, it was necessary to employ expert and skilled labor and so, too, in removing the same, if such forms were to be removed without taking them apart. Therefore, a wrecking gang was employed to remove such forms and false work who had special knowledge as to the reasonably safe method of removing the same. A day or two prior to the accident such wrecking gang had removed from the ceiling of the basement all the forms or false work except certain planks which had formed the bottom of the forms, in which the concrete had been poured to make the girders of beams of the ceiling, and the posts or props extending from the ground to such planks which tended to hold them in place. Such planks extended along the bottom of such beams or girders, being two inches thick, from six to eight inches in width and varying in length from twelve to eighteen feet.

Such being the situation of the basement and its ceiling, the plaintiff with two coemployees, all healthy, strong men, were directed by the defendant’s boss or superintendent to remove such planks from beneath such girders or beams and to place them on the ground below, a distance of from fourteen to sixteen feet, without breaking them.. Plaintiff and his two coemployees entered upon such work upon the morning of the day in question. They had removed four planks, eighteen and a half feet long, eight inches wide and two inches thick and which weighed between seventy-five and one hundred and twenty pounds without accident, and such removal was made as follows: One of plaintiff’s associates got a ladder

which enabled him to reach one end of the plank in question, and the other, by means of another ladder, reached the other end. When both had reached such position, one of them directed the plaintiff to knock out the prop from under the plank, which he did, and both men on the ladders commenced to pry the plank loose with pinch bars, intending, when it became disengaged from the girder, that with one holding' onto each end they-would carry it down the ladders and place it upon the ground. But when the plank had become fully detached from the girder and the' man on one of the ladders attempted to hold one end of it, because of the insecure, placing of the foot or feet of the ladder upon which he was standing he lost his balance and to save himself let the plank fall to the ground. The plaintiff, at the time apparently giving no attention to what was being done with the plank above, had stooped to pick up and carry away the timber or support which he had knocked from under the plank, and the plank fell, striking him upon-the head and causing the very serious injuries for which he seeks to recover in this action.

The action was tried and submitted to the jury as a common-law action. The evidence is practically undisputed and it is only necessary to determine whether or not such evidence tended to establish actionable negligence against the defendant.

As before said/the material facts in this case are not in dispute and, as it seems to me, present one of the simplest and most ordinary situations. The defendant was desirous of having removed from the ceiling of the basement of the building it was erecting a plank eighteen feet and six inches long, eight inches wide and two inches thick, which weighed from seventy-five to one hundred and twenty pounds. The defendant sent three of its employees to make such removal and to lower the plank from such ceiling to the ground. It appears without contradiction that they had successfully and without accident removed four other planks during the same morning situated precisely as the one in question. There is no suggestion in the evidence that the whole situation was not perfectly obvious to the plaintiff and to his associates. His two associates were to loosen the plank above and bring it to the ground. Of course, he knew that if they let the plank drop and he was under it, injury would probably result to him. The plank did not fall immediately when the plaintiff knocked out the prop from under it, but it remained in place until his two coemployees had loosened it, and when the weight of the plank came upon them, by reason of the insecure footing of the ladder which they had placed upon the uneven ground, one of plaintiff’s coemployees let go of the plank and'plaintiff’s injuries resulted.

A large portion of the brief of respondent’s counsel is devoted to the proposition that the erection of a reinforced concrete building involves expert and technical knowledge on the part of the employees and involves such work as cannot be safely performed by ordinary common laborers. But it seems to me that the intricacies or complications' of the construction of a reinforced concrete building have nothing to do with the facts in this case. As we have pointed out, the only thing that the plaintiff and his two associates, both healthy and strong men, were directed to do by the defendant was to lower a plank, weighing from seventy-five to one hundred and twenty pounds, from the ceiling to the ground, a distance of from fourteen to sixteen feet. Under such circumstances, what rule was the defendant required to promulgate in order to protect such employees? Was one that the plaintiff or anybody standing upon the ground must not get under a falling plank or see to it that such plank did not fall when he was in position to be struck or injured by it ? Under the situation developed by the evidence in this case we think the master was not required to promulgate any rules for the protection of the plaintiff and his associates. Neither do we think it of importance that certain expert witnesses testified that in other work of this character they had seen planks of the character of the one in question lowered by means of ropes or by means of a platform which is described in the evidence. So far as the ropes are concerned, it is difficult to see how they could have been fastened to the plank until it was free from the girder above, and after it got free from such girder the difficulty arose and there was no opportunity to attach ropes or anything else. The weight of the plank coming against the man who was upon the ladder which had not been properly placed made him lose his balance and let go of the plank. The same thing would have occurred if he had had a rope with him, prepared to place it around the plank as a means of lowering it. So far as the platform is concerned, if such platform had been erected and plaintiff was on it, the falling plank would have struck him just the same, and if he was at one side of the platform thus erected, because of the direction in which the plank in question fell he was equally liable to accident, because the plaintiff contends that the plank did not fall perpendicularly down but swerved to one side of the place from which th¿ prop had been removed.

The "case was submitted to the jury principally upon the theory that the plaintiff and his two associates were furnished with an unsafe place in which to work. The place- was absolutely safe. It was light. There was plenty of room in which to perform the task assigned to them; plenty of room in which to knock out the prop under the plank, which the plaintiff did, and his associates were strong enough and entirely competent to hold the plank from falling in case one of them had placed his. ladder securely and thus prevented the losing of his balance and the consequent falling of the plank.

I think there is no basis in the evidence for the suggestion that the method which was employed to lower the plank in question was unsafe and such as to charge the defendant with negligence in that regard. The defendant was not required to employ the safest method but only such as was reasonably safe under all the circumstances, and this, we think, the evidence demonstrates that it did when all the circumstances are considered. (Heilig v. Burns, 133 App. Div. 764; Apati v. D., L. & W. R. R. Co., 64 id. 515.) Neither is there basis in the evidence for the contention that the defendant was negligent in that it hired coservants who were known by it to be incompetent. There is not a word to indicate that either of plaintiff’s associates had ever been guilty of an act of negligence before and there is not a particle of evidence to indicate that the defendant had knowledge that they were in any way incompetent. Indeed, the only contention of respondent in this regard is that they were incompetent to do the work in question, to wit, lower the plank from the ceiling to the ground, because they were common laborers and did not possess expert knowledge in regard to the construction of a reinforced concrete building, or did not possess technical knowledge in respect to taking down the forms which had been erected for such construction, forgetting, as it seems to me, the proposition before stated that the only thing here to be done by the plaintiff and his associates was to lower a plank from the ceiling to the ground, which was in plain sight and which was being taken down precisely as at least four other planks had been taken down by himself and his associates immediately prior to the accident.

I conclude upon all the evidence in this case that the plaintiff failed to establish actionable negligence against the defendant and that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Judgment and order affirmed, with costs.  