Michael Terranova, Respondent, v. The City of New York, Appellant

Michael Terranova, Respondent, v. The City of New York, Appellant. Second Department, September 23, 1913. Master and servant—negligence — fall of laborer through, defective roof—evidence—safe place to work. In an action by a laborer to recover for personal injuries while employed by the defendant to help a tinsmith re-cover the roof of a shed it appeared that roof was in a defective condition, which was not apparent to an ordinary observer, although discernible from within the shed by proper inspection, and that the roof gave way with the ' plaintiff and he fell to the ground, sustaining injuries. Evidence examined, and held, that the plaintiff’s ’injuries were attributable to the negligence of the defendant, and that a verdict in favor of the plaintiff should be affirmed. The defendant was obliged to use ordinary care and diligence in giving the plaintiff a reasonably safe place to work, and the plaintiff was entitled to believe that the defendant had discharged that duty. Appeal by the defendant, The City of New York, 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 21st day of December, 1912, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 18th day of January, 1913, denying defendant’s motion for a new trial made upon the minutes. James D. Bell [Frank Julian Price and Archibald R. Watson with him on the brief], for the appellant. Nelson L. Keach, for the respondent. [MAJORITY — Stapleton, J.:] Stapleton, J.: The plaintiff, a laborer in the employ of the defendant, was set to work to help a tinsmith recover, with tin or corrugated iron, the roof of a shed on defendant’s property. The roof was made of lumber. A section of the roof was inadequate to bear the strain of plaintiff’s weight in addition to the materials which he was carrying, and it gave way. Plaintiff fell through to the ground and sustained injury. The evidence tended to show that the lumber was decayed and that the decay was observable from the reverse side, within the shed. The tinsmith, who weighed about as much as the plaintiff, had with safety walked on the spot through which the plaintiff afterwards fell. The defendant was obliged to use ordinary care and diligence in giving the plaintiff a reasonably safe place to work, and the plaintiff was entitled to believe that the defendant discharged that duty. The defective condition was not apparent to ordinary observation from plaintiff’s point of view. It was discernible from within the shed by proper inspection on the part of one charged with the affirmative duty of ascertaining the condition before providing it for the use of a workman. This is not a case where the prosecution of the work made the place and created the danger. The plaintiff was hot assigned to demolish or reconstruct the roof. He was engaged to aid in recovering it with tin or corrugated iron, and the place furnished in which to do the work was the roof itself. The place was presented to the plaintiff, not prepared by him. His work was not, generally, to aid in repairing a defective structure, but specially to recover an established roof which he could assume to be sound in the absence of a visible defect, the dangerous nature of which an ordinary laborer could comprehend. We think it was within the province of the jury, upon the evidence appearing in the record, to attribute the injury to the sole negligence of the defendant. (McGuire v. Bell Telephone Co., 167 N. Y. 208, 210, 211; Kranz v. Long Island R. Co., 123 id. 1, 5. See Gates v. State, 128 N. Y. 221, 226.) The judgment and order should be affirmed, with costs. Present—Jenks, P. J., Burr, Thomas, Stapleton and Putnam, JJ. Judgment and order unanimously affirmed, with costs.