Morrissey v. Dwyer

The plaintiff’s intestate was a workman in the employ of the defendant, who was engaged in the construction of the Hall . of ¡Records in Brooklyn. At tlie time of his death he'was engaged in using a rnnway on the third floor of the in completed building. From the. elevator used to hoist building materials to the level of the third floor had been constructed a so-called runway of two planks, eighteen inches wide over all to'another part of that floor to a platform. A return runway from the. platform to the elevator similar in construction and, in width liad also been constructed and was in use. These runways were used for the transportation of building materials from the elevator to the platform by means of wheelbarrows, and the return runway was.for the purpose of allowing tlie men with their barrows to return to the elevator in case the first runway was occupied by other advancing wheelbarrows. .At a point ten to fifteen feet from the platform, a derrick had been.erected near tlie return runway, a part of whose principal structure came to within a few inches thereof, A cogwheel connected with the derrick extended partly over the return runway. On the morning of tlie *249accident the plaintiff’s intestate, with others, was put to work transporting materials from the elevator to the platform, and because he was followed on the platform and on the going runway by other laborers with barrows, he essayed to reach the elevator by way of the return runway. The extent of the obstruction of the derrick to free passage along this runway is described by the statement that a man with a loaded wheelbarrow could not pass the derrick,,but that by being careful he could take an empty wheelbarrow along that way by turning it sidewise. The plaintiff’s intestate appears to be the first who used that passage on the morning of the accident, and while the evidence of the plaintiff’s witnesses is somewhat conflicting in the exact manner in which' he was moving his barrow, the jury were justified in finding that he was pushing his barrow ahead of him, that when he reached the derrick he tried to pass by turning his barrow sidewise, that it became stuck, being held by the derrick, arid that in his effort'to extricate it one of the handles hit him on the chest, knocked him off the planks from which he fell to his death to the floors below. As the deceased was leaving the platform to return to the elevator, he and those working with him were urged to hurry up to make way for others following.

I think the judgment entered upon the verdict in favor of the plaintiff should be affirmed. The charge of negligence is that the defendant did not provide a safe place to work and the jury were justified in finding negligence in this respect under the circumstances, where an eighteen-inch runway provided to be used by men trundling wheelbarrows, suspended in the air, unprotected, was obstructed in such a manner as to require the moving of the barrow sidewise to allow passage. The risk that the deceased assumed was that of moving his barrow along a narrow runway, elevated in the air, whose condition had been made reasonably safe for the purpose for which it was intended', and was not the risk incident to an effort to free his barrow which had been caught in an obstruction in that way. The intestate was not guilty of contributory negligence in using the return runway instead of the going, for others were following him with loaded' barrows upon the latter, and he was, even at. this time, urged-by the foreman to hasten out of the way. Nor can it be held as a matter of law that he was guilty of contributory *250negligence in allowing his barrow to become caught in the derrick. The evidence of one of the plaintiff’s witnesses was that in- approaching the derrick the intestate was endeavoring to pass it by turning his wheelbarrow sidewise in the necessary manner.' ' The jury' was justified in finding, also, that he was not guilty of contributory negligence in trying to extricate his implement, for the exigeucies of the situation required him t-o clear the way, to act and to act quickly, and there is no suggestion- that he was adopting any unusual or improper method in trying to accomplish the result. There is no satisfactory evidence that he had Used this return runway before. It certainly affirmatively appears that he had not used it that morning, and it likewise appears that the position of the derrick had been recently changed. , - ’ , •

The judgment and order should be affirmed, with costs.

Present — Hirschberg, P. J., Woodward, Hooker and Rich, JJ.

Judgment and order unanimously affirmed, with costs.