Harry Hartman, an Infant, by Monica Schmidt, his Guardian ad Litem, Respondent, v. Thomas A. Clarke and Others, Appellants

Harry Hartman, an Infant, by Monica Schmidt, his Guardian ad Litem, Respondent, v. Thomas A. Clarke and Others, Appellants. Negligence — injury from the giving way of an iron Aar inclosing an elevator shaft in process of construction — an accident not to be' reasonably, anticipated need not be guarded against. In an action brought to recover damages for personal injuries, it appeared that '' the defendants, who were the contractors for the iron work in a building in process of construction, had set tip on the third floor of the building vertical iron bars extending from the floor to the ceilingjin front Of. an open elevator shaft between which briqk work was to be placed to inclose the elevator shaft; that on the same floor was a scaffold extending across the room and so close to the elevator shaft as to leave a space of about ten inches wide between the supports of the scaffold and the vertical iron bars; that the plaintiff, who was engaged at plumbing work in the building, in an endeavor to pass from one end of the building to the other, attempted to squeeze through the space between the vertical iron bars and the scaffold supports, and in so doing took hold of one of the iron bars, which bar, not being securely fastened, gave way and caused him to be precipitated into the elevator shaft. There was no proof that any other person than the plaintiff had attempted to pass between the scaffold supports and the iron bars, or that the defendants had ever invited such an attempt. The plaintiff was familiar with the building and the evidence was convincing that a projected hallway of the building, although not floored, was in such a condition that it could be used for passage from one end of the building to the other. Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed; That the case came within the rule that negligence cannot be predicated upon the happening of an accident, which is not the reasonable, natural and probable result of circumstances, which, in the exercise of due prudence, should have been foreseen by the defendants. Appeal by the defendants, Thomas A. Clarke and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of April, 1904, upon- the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 28th day of April, 1904, denying the defendants’ motion for a new trial made upon the minutes. I. R. Oeland [Phillip A. Brennan with him on the brief], for the appellants. Samuel Cohen, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The plaintiff was at plumbing work" on the third floor of a building under construction. The defendants were the contractors for the iron work therein. They had set up vertical iron bars from floor to ceiling in front of the open elevator shaft, which were called channel bars, and which were designed to hold the fire bricks making the “final wall” of the shaft. At the time of the accident a scaffold six feet above the floor, laid upon, wooden supports called horses, extended from thó Wall twenty feet across the room, so close to the elevator shaft as to leave but a narrow spaice. ’ The plaintiff testifies that the space was about ten inches wide—one “ could hardly get through that.” His witness Raymond testifies .that the spaed was ten or twelve inches, so that á man “ could barely squeeze through if he was not too large.” The plaintiff sought passage from one end of the building to the other. He attempted to “ squeeze through ” this space, and in so doing took hold of the iron bar so that the bar-‘went out” and he fell into the open elevator shaft. The said witness Raymond testifies: “ Well, as the horse was close to the uprights, the channel, irons or T-iitohs, whichever they were J, don’t recollect, but the horse" was standing too/ close for a man to walk through with his, shoulders facing forward, .and so he faced towards the - shaft and walked in sideways, and as he grabbed hold of this first upright , he come to, it leaned out with- him, and he squeezed in between the horse and upright, and he fell out with it. He swung out with the upright, the upright leaned up against the wall, the upright being longer than the width of the shaft and the upright leaned in about a thirty degree angle, and he hung on for about two or three seconds, and finally his lingers gave way and he dropped.” The negligence: imputed to the defendants is their failure to “ properly construct: and erect the. said: vertical bars or pillars and particularly the one in question,” ‘‘ to properly bolt, fasten and rivet the said bars: and leaving the same in a seemingly safe'and permanent condition,” and “to give any .notice of the unsafe and dangerous condition of the said bars or pillars.” The plaintiff and his witness Raymond admit that one could have gained a passage under the scaffold, but they as'sert'that the space thereunder was incumbered by fireproofing, barrels, laths and other material., Raymond admits, however, that one could have moved three or four bundles of laths and passed, underneath the scaffold in perfect safety, if he had “ gone and asked permission of the lather or whoever owned the property that was there.” There was a sharp contradiction as to whether there was any material impediment. But further, there is convincing evidence that at this time there was a passageway, evidently .the projected hallway, running from front to rear, in such condition that one could pass along it. The plaintiff testifies that he did not look to see whether there was such a passageway. Raymond, in rebuttal, testifies that there was no flooring on it, simply beams running across an open space; but it is clear enough that it afforded access. The plaintiff says that he thought the way he attempted to take was the easiest and the shortest, and Raymond says it was the nearest. The plaintiff knew that the building was under construction; he had been working on this floor for “ one day or two ” or “ maybe more,” and he was familiar with the. plans of the floor and knew the rooms in it, though he testifies, “ I cannot understand that, plan,” referring to a plan exhibited to him. There is no proof that any other person had ever attempted such a passage, and there is no proof of any invitation. I think that there is no negligence shown as against the defendants. The case falls within the rule that negligence is riot imputable to an accident, not “ the reasonable, natural and probable result ” under the circumstances, “ which ought to have been foreseen by the defendant in the exercise of ” due prudence. I have collated some of the authorities in McKenzie v. Waddell Coal Co. (89 App. Div. 415) and in Saverio-Cella v. Brooklyn Union R. R. Co. (55 id. 98) and I need not repeat theiS. The defendants had not finished this work. I cannot see that they lacked due prudence in leaving for a time this iron bar incompletely secured so that they ought to have foreseen, notwithstanding other and natural means of passage, that a workman, if “ not too large ” a man, might attempt to “ squeeze through ” the narrow opening sideways, and in so doing would use the iron bar on the assumption that it was then so secured that he might with impunity use it to widen his passage or to aid his passage or as a fender against the open shaft. I advise a reversal of the judgment and order and the granting of a new trial. Hirschberg, P. J., Bartlett, Rich and Miller, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.