William Slaviz, as Administrator, etc., of Gaetano Cirelli, Deceased, Respondent, v. Wahlig & Sonsin Company and Others, Appellants

William Slaviz, as Administrator, etc., of Gaetano Cirelli, Deceased, Respondent, v. Wahlig & Sonsin Company and Others, Appellants. First Department, May 7, 1915. Master and servant — negligence —fall through open shaft in building under construction—failure to show manner or cause of accident. Where in an action to recover for the death of one who was employed in a building under construction to trundle mortar in a wheelbarrow, and whose body was found at the bottom of an open stairway well which he had been accustomed to cross on a scaffolding, composed of planks, there was no eye-witness to the accident or any proof as to the manner in which the decedent met his death and there were openings leading to the well other than the one containing the scaffolding, through which openings the decedent might have fallen, a nonsuit was properly granted, for the manner in which the deceased met his death and the cause of the accident are purely matters of speculation. Appeal by the defendants, Wahlig & Sonsin Company and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 26th day of June, 1914, setting aside the dismissal of the complaint herein and restoring the case to the trial calendar for trial. The complaint had been dismissed by the court at the close of the whole case and judgment had been entered thereon. Carl Schurz Petrasch, for the appellant Wahlig & Sonsin Company. Joseph V. Gallagher, for the respondent. [MAJORITY — Hotchkiss, J.:] Hotchkiss, J.: Plaintiff’s intestate, a laborer employed by defendants Grimaldi and others, copartners, came to his death by falling through a stairway opening or well in a.building then under construction. The defendant Wahlig & Sonsin Company was the owner of the premises and had given a contract to Grimaldi & Co. to furnish the labor and scaffolding for the front and rough brick work. The deceased was engaged in trundling mortar in a wheelbarrow, from a hod hoist at a distant point in the building, to the bricklayers at work on the front wall. The building was up to a point above the foprth floor, where the deceased was at work. The course over which the deceased wheeled his barrow crossed a bridge or scaffold laid across the stairway-well. The well was about fourteen feet six inches by six feet nine inches, and seems to have been inclosed by brick walls with open spaces at floor levels, intended for doorways. The scaffold consisted of three two-inch planks laid across the well between two doorways and at a point nearest to one of the brick walls, and was nailed to the wooden flooring. One side of the scaffold was apparently protected by the nearby wall; the other side was guarded by two planks fastened together by a cleat, which in turn was fastened to the edge of each doorway and also braced to the wall. The height of this railing or bulwark was not over sixteen inches. There was no eye-witness to the accident, but the deceased and his barrow of mortar were found at the bottom of the shaft, almost immediately under the edge of the bridge. A bricklayer swore that about fifteen minutes before the accident deceased had filled his tub and had started back for more mortar. There was not a particle of evidence to show that the deceased fell from the scaffold, or what caused the accident, and it is a pure matter of speculation as to how he came to his death. Plaintiff offered no evidence to show that the guard on the side of the scaffold was found broken after the accident; on the contrary, defendants’ evidence was to the effect that it was unbroken. Nor was there evidence affording the inference that deceased might have fallen through the space between the wall and the inner edge of the scaffold. There were four doorways to the well, including those through which the bridge ran. The widest part of the barrow was twenty-six inches, and the doorways were from thirty-two to thirty-six inches wide, and from aught that appears to the contrary, the deceased might have fallen through one of these openings. For this reason I think the dismissal was right as to both of the defendants. But as to Wahlig & Sonsin Company there is another ground for reversal. The respondent attempted to show interference with the work by Wahlig & Sonsin Company, and claims to hold that company under section 18 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1911, chap. 693), on the ground that it never surrendered control of the work; hut the evidence to support this claim was manifestly insufficient, while defendants’ testimony made it clear that all that Wahlig & Sonsin Company did was to inspect rather than to superintend the work of the Grimaldi firm, and that it never undertook to do more than to see that the latter kept to their contract. (Uppington v. City of New York, 165 N. Y. 222; Herman v. City of Buffalo, 214 id. 316.) An appeal is made to section 20 of the Labor Law (as amd. by Laws of 1911, chap. 693), but I cannot see that it has any application. There is nothing in the law which requires during construction a floor to be laid over a space which is to be permanently open, and the part of the section referring to planking over the entire tier of beams as construction proceeds has no application. The order appealed from should be reversed, with costs, and the judgment reinstated. • Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred. Order reversed, with costs, and judgment reinstated. Since amd. by Laws of 1918, chap. 493.— [Rep.