John J. Tracy, Respondent, v. Hedden Construction Company, Appellant

John J. Tracy, Respondent, v. Hedden Construction Company, Appellant. Second Department, March 15, 1912. Master and servant — negligence — injury by stepping upon nail — proof not justifying recovery — assumption of risk. A workman employed in the construction of a building cannot hold his master liable for injuries received when leaving the building at nightfall by stepping upon a nail in a loose piece of planking left upon a runway "where the evidence shows that the plank was not there within half an hour of the accident. The master cannot be charged with constructive knowledge that the obstruction was there. Moreover, where it appears that in constructing such building loose boards' and planks were strewn about, the plaintiff in using the runway to leave the building assumed the risk of the existing conditions. Appeal by the defendant, the Hedden 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 Kings on the 29th day of June, 1911, upon the verdict of a jury for $T50, and also from an order entered in said clerk’s office on the 1st day of July, 1911, denying the defendant’s motion for a new trial made upon the minutes. Allan E. Brosmith [Amos H. Stephens with him on the breif], for the appellant. M. E. Kelley [Christian S. Lorentzen with him on the brief], for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: The plaintiff was injured while working in the employ of the defendant, a company engaged in the erection of a building on the site of the former Fifth Avenue Hotel, Twenty-third street and Broadway, in the borough of Manhattan. He was at work on the fifth floor of the building on the day of the accident, namely, October 30, 1908, and in common with the other workmen was preparing to leave the building at about a quarter of an hour before sunset. On that day, in the progress of the work, the girders of the fifth floor had been only partially covered by loose scaffolding and narrow runways with open' spaces on either side. The runway was only two feet wide, and someone had left a piece of planking across it with a nail projecting through the plank. The plaintiff at the time was engaged in collecting empty cement bags on the different floors, and at the time of the accident was doing that work on the fifth floor. He stepped upon the nail in the piece of plank referred to, and the nail, penetrating his foot, caused the injury complained of. He testified: “I was walking along the runway and there was a piece of a plank across the runway with a nail sticking through it, and it was dark; there was no lights in the building, and I couldn’t see this across the runway, and I stepped on the nail and it went right through my foot. This took place right in the center of the fifth floor. I didn’t see the end of the plank which contained the nail until after I stepped on it. I could hardly see it then, it was so dark.” There was evidence given to the effect that the place was dark, and it is undisputed that there were no artificial lights. The case was submitted to the jury on the theory that the defendant was guilty of negligence in failing to furnish artificial light at the time. There is no claim that the conditions on the day in question differed from those which prevailed on other days while the plaintiff was working in the building. He had been at work there several months. About 200 men were employed in the work, and nothing appeared to indicate that an accident such as occurred at the time in question was to have been reasonably anticipated by either the defendant or its employees. One of the plaintiff’s witnesses testified that he had used the runway in question several times on the afternoon of October thirtieth, the last time within twenty minutes or half an hour prior to the plaintiff’s accident, and that the piece of plank with the nail in it was not there then. I do not see how the defendant could be charged with constructive knowledge of the presence of the plank with the nail in it on the runway. The learned counsel for the respondent states in his brief that “It is perfectly well known that in all building operations loose ends of boards or planks will be strewn about.” If this be so, it would seem that the condition herein complained of was one of the necessary risks of the employment, and that the plaintiff in using the runway at the time he did assumed whatever risk was incident to the conditions then prevailing. The judgment and order should be reversed. Jenks, P. J., Burr, Woodward and Rich, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.