
    Margaret Rooney, as Administratrix, etc., of John Rooney, Deceased, Appellant, v. Brogan Construction Company, Respondent.
    
      Negligence. — injury to an employee of a contractor from falling through an unguarded elevator shaft in a building in course of construction — liability of th owner — the questions of contributory negligence and assumption of risk are for the jury — burden of proof— the remedy provided by section 21 of the Labor-Law for a, violation of section 20 thereof is,not exclusive — the word “or" in “contractors or owners” construed to make both liable.
    
    In an.action brought to recover damages resulting from the death of the plaintiff’s intestate it appeared that the defendant was the owner of a ten-story building which was being constructed by several independent contractors, to some of whom the defendant furnished materials; that in the course of the work a hoisting machine was installed in the building by a hoisting machine company, which was used by the different contractors, each of whom paid the hoisting machine company for -the privilege of using it; that the openings in the. different floors through which the machine was operated were entirely , unguarded, in violation of section 20 of 'the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192); that, in addition to being used by the contractors, the'hoisting machine was used by the defendant, and that an officer of the defendant frequently inspected the premises.
    It further appeared that the plaintiff’s intestate was in the employ of one of the independent contractors, and that for a few days prior to the accident he was engaged in the work of lighting stoves placed on the different floors of the building for the purpose of drying the plastering; that while so engaged, after dark on the night in question, he crossed a room for the purpose of getting a small stove, passing within a foot or two of the elevator opening; that when returning with the stove in his arms he stumbled and pitched head first into the elevator opening,, receiving injuries which resulted in his death. There was no affirmative evidence that the deceased knew of the unguarded condition of the elevator opening.
    
      The jury were undoubtedly influenced by the argument made by the attorney for the company that they were powerless to prevent such occurrences. The restrictions and limitations put on trial judges prevented me from saying to the jury what the company could do and should have done by way of preventing such occurrences — such as that the platform man should have caught the man who was going through the window by the heels and pulled him back on the platform and arrest him, if necessary, for his disorderly conduct,, and, if one platform man was not sufficient to prevent it, the company should have had two or three men there for that purpose, even if it involved some expenditure on their part for the comfort and safety of their passengers. The work and duty of this company does not begin and end with the collection of the passenger’s fare. There is ample provision made by the company to collect fares, so that no one can ride on their cars without paying his fare, and steps are taken to see that the conductors turn over all the money- received, by having the necessary inspection and oversight of the conductors by men paid for that purpose, and, in paying fares, it is regulated that the passengers all go through the same gates in an orderly respectable way. If the same earnest, reasonable effort is made with sufficient men to protect passengers from insult and injury, I see no reason why it should not be equally effective to accomplish the result. I fear that in the anxiety to get every nickel the duty owing to the passengers is overlooked. The company owes passengers the duty of regulation and protection. If the company would furnish sufficient cars, so that every passenger would be provided with a seat, there would be no need for any wild scramble to secure the limited number of seats provided. Other railroads prevent passengers from getting in by windows; in fact, they are so well managed that no one attempts it.
    The proof was clear that the getting in at the windows had happened several times before this time at this same station, and the platform man admitted that he had seen it occur a few times in the few months he had been employed in his one-half day tour of duty. The other Witnesses for the defendant were not so situated that they could see what was going on at this station platform, as the ticket office there is below the platform.
    The verdict is set aside, and a new trial granted before another jury, because it is against the weight of evidence and because the interests of the public require it.
    Section 20 of the Labor Law provides: “If elevating'machines or hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by a barrier at least eight feet in height.”
    
      Held, that the questions whether the deceased was guilty of contributory negli- . gence and whether he had assumed the risk incident to the unguarded condition of the elevator opening were questions of fact for the jury, and that, with respect to the latter question, the defendant had the affirmative;
    That the remedy provided in section 21 of the Labor Law (added by Laws of 1899, chap. 192) for the enforcement of the duty imposed by section 20 of the Labor Law is not exclusive;
    That a person, injured through a violation of the duty imposed by such section, may maintain an action against the person guilty of the violation to recover damages for such injuries;
    That the,use of the word “or” in the phrase “contractors or owners” contained in section 20 did not indicate that it was the intention of the Legislature to impose the duty upon either the owner or the contractor, severally, accordingly as one or the other of them had the work in charge, but that the phrase should be construed to impose the duty upon both the contractor and the owner and to leave to them to determine which should undertake the performance of the duty.
    
      Appeal by the plaintiff, Margaret Rooney, as administratrix, etc., of John Rooney, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of December, 1904, upon the verdict of a jury rendered by direction of' the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 9th day of December, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Gilbert D. Lamb, for the appellant. - •
    
      L. R. Oeland [E Sidney Berry with him on the brief],for the respondent.
   Miller, J.:

The defendant, as owner, was engaged in'the construction of a ten-story building through the instrumentality of several different independent contractors, to some of whom it furnished materials. As the work progressed' a hoisting machine Was installed in the building by a hoisting machine company, and was used by the different contractors to hoist materials, each paying the hoisting machine company by the hour or day for the use of the machine. The openings in the different floors through which .this machine was operated were entirely unguarded, in violation of section 20 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192). An officer of the defendant was frequently on the premises inspecting the progress of the work, and the defendant employed a watchman who was required among other things to observe the manner in which the work was being done by contractors and report to the defendant; he used the hoisting apparatus- to hoist coal for the defendant from the basement to the different floors to heat the building. Plaintiff’s intestate, a servant of one of the defendant’s contractors, had been employed on the building about two weeks, at first in the basement mixing plaster and putting it on the hoisting machine to be carried to the different floors, and later lighting the fires in stoves on different floors for the purpose of drying the plastering. This had at first been attended to by a servant of the defendant, but for a reason immaterial to .the question involved an officer of the defendant had requested said contractor .to have this attended to by one of its own men. The building was fifty feet front by one hundred feet deep and no partitions had been erected on the ninth and tenth floors. Stairways connected the different floors and the hoisting "elevator opening was on one side of the building about twenty-five feet distant from one set of these stairways. The floors had not been completed, but shortly before the accident dark colored cinders had been filled in between and nearly on a level with the sleepers. After dark on the night in question the deceased, assisted by another person, each carrying a torch, had lighted the fires on the tenth floor, and upon descending to the ninth floor the deceased undertook to carry a small stove across the room, holding it in front of him, and, when near the elevator opening, stumbled and pitched head first into the opening, receiving injuries causing his death, for which this action is brought. In going for the stove he had passed within a foot or two of said opening.

At the close of the entire evidence the court directed a verdict for the defendant upon the ground that the deceased had assumed the risk, and upon the further ground that said section 20 of the Labor Law did not impose any duty on the defendant for breach of which an action could be maintained by the servant of an independent contractor. Although in form the court directed a verdict, such direction can be sustained, if at all, only as a nonsuit, and upon this appeal we must examine the record to ascertain whether upon the view most favorable to the plaintiff there was any evidence requiring the submission of the case to the jury.

The learned justice thought that upon the question of contributory negligence the evidence presented a question of fact for the jury. In this view we concur, and think that the question of assumption of risk was also for the jury. Upon this question the defendant had the affirmative. (Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459.) There was no affirmative evidence that the deceased knew of the unguarded condition of the elevator openings, and we do not think such knowledge could be inferred as matter of law from the mere fact that for a few days he had been lighting fires on the different floors; certainly that occupation did not necessarily call his attention to the absence of guards about these openings. He knew, of course, that the hoisting apparatus was there, but so far as the evidence discloses the only place where his employment must necessarily have directed his attention to such apparatus was in the basement, and the evidence does not disclose either that he could or should have observed the absence of guards about the openings on the floors above. Under these circumstances we think it, cannot be said as matter of law either that he knew of the absence of guards, that he assumed the risk or that he acted other than as an ordinarily prudent person would have acted under the circumstances, bearing in mind his right to rely on the assumption that the duty to guard these openings had been discharged.

This brings us to the serious question in this case, which requires the construction of said section 20 of the Labor Law, which, so far as applicable, provides: If elevating machines or hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used in Such construction, the contractors or owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by a barrier at least eight feet in height.” It is insisted by the respondent, first, that the' defendant owed no duty to the deceased at common law and that the statute imposing the duty having also provided a method of enforcement by section 21 (added by Laws of 1899, chap. 192), that method is exclusive and that no cause of action was created by the act; and, second, that the words contractors or owners” should be so construed as to impose the duty on the one having the particular work in charge, and that where the building is erected wholly by a contractor or contractors over whom the owner has no supervision except to see that they perform the contract the obligation rests, on the contractors, but not On the owners. As to the first proposition, it may be granted that the defendant owed ho duty to the deceased at common law. Section 21 of the statute does provide that the Factory Inspector shall enforce the provisions of article 1 of said statute, which contains these sections, in the manner pointed out, and if the rule invoked by the defendant is applicable, that where a statute creates a new offence by making that unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced” (People v. Stevens, 13 Wénd. 341), the action cannot be maintained. We do not think, however, that that rule is applicable. It cannot be doubted that the statute imposed a duty for the benefit of a class of persons embracing the deceased. Section 20 is headed: “ Protection of persons employed on buildings in cities.” With the duty thus imposed there was the correlative right in such persons to have it discharged, and it is difficult to discover any logical answer to the proposition that where a particular person has a right to have some duty to him performed, he should have a cause of action for the breach of such duty irrespective of whether it was imposed by statute or the common law. We think the rule applicable to this case is that stated by Judge Finch in Pauley v. S. G. & L. Co. (131 N. Y. 90, 95) : “ When a statute commands or prohibits a thing for the benefit of a person he shall have a remedy upon the same statute for the thing enacted for his advantage, or for a wrong done to him contrary to its terms ” (citing Willy v. Mulledy, 78 N. Y. 310, and see Marino v. Lehmaier, 173 id. 530). The respondent cites Eckes v. Stetler (98 App. Div. 81); City of Rochester v. Campbell (123 N. Y. 405) and Koch v. Fox (71 App. Div. 288). In the first case cited the statute provided for the recovery of damages to the person injured in an action to be brought by a particular board for and in behalf of such person, and of course it was held that the remedy provided was exclusive. While the statute under consideration provides a method of enforcement, it contains no provision respecting the recovery of damages by a person injured by a violation, and as it is clear that a duty was imposed upon one class of persons and a correlative right conferred upon the other, in the absence of anything in the statute to the contrary, it necessarily follows that damages flowing from a breach of such duty may be recovered, by the person injured who had the right to the discharge of the duty, and for whose benefit it was imposed. In the second case relied upon by the respondent the rule above stated as applicable to the case at bar was approved, but it was held that the particular statute in question was not designed for the benefit of the public or any particular class of individuals, and it is not clear that the decision in Koch v. Fox (supra) was really placed upon the point now being considered.

As to the second proposition, it is very clear that the statute was intended to insure so far as it could the erection of guards or barriers for the' protection of persons employed, and it seems to me that to that end it imposed the duty on both the contractors and owners and required that either the one or the other should see to it that the barrier was erected, and that the failure of either would furnish no excuse for the other. Of course the disjunctive “or” is used, meaning-one or the other and not both, but the statute does not say that under certain circumstances one must do it, and under other circumstances that the other shall. It says in effect that under all circumstances one or the other must do it. I can see nothing ambiguous in this. When a statute provides that one or the other of two persons shall do a thing I think it imposes a duty on both and. leaves it to them to determine who shall do it. This certainly imposes no hardship on the owner because he can always protect himself. In the case of Koch v. Fox (supra) the ordinance was very similar, so far as the question involved, to the statute here. It appeared that the owner was in Europe and had let the' contract for the erection of the entire building to a single contractor. Mr. Justice Laughlin, writing for a majority of the court, says: “ The terms of the ordinance are satisfied by a construction which requires compliance by the owner if he be doing the work by day labor or through contractors for separate parts, so that he retains charge and control, and compliance by the general contractor if the work be all let by one contract.”

In the case at bar there were as many different contractors as there were kinds of work,, and, without passing upon the question as applied to any state of facts except those shown to exist in this case, we think that a duty was imposed by the statute upon the defendant for the benefit of plaintiff’s intestate, and that as the breach of that duty was a proximate cause of the decedent’s death,, the evidence presented a question for the jury, and that a nonsuit was error! ' '

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., Bartlett, Jenks and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  