Rohlfs v. Weil , 271 N.Y. 444 ( 1936 )


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  • While plaintiff Marguerite Rohlfs was descending a stairway which connects the surface of the street with the subway railroad station at Broadway and Thirty-fourth street in New York, one end of a scaffold which was insecurely suspended from the adjoining building above the highway gave way and a painter at work on the scaffold fell and his body struck and seriously injured plaintiff. No barricades or danger signals were posted on the sidewalk or elsewhere to warn pedestrians of the presence of this scaffold suspended over them.

    The entire building was leased from the owner by appellant Gotham Silk Hosiery Co., Inc. Five large signboards were affixed to the sides and on the roof. Two of them were leased from the Gotham Company to appellant Strauss Co. which was engaged in the sign advertising business. The painter, who fell when the scaffold collapsed and whose body injured plaintiff, was employed by defendant Weil who had a contract with Strauss Co. for painting advertisements on some of these signboards. At Trial Term the complaint was dismissed as against these two appellants but the case was sent to the jury as to defendant Weil. It found for plaintiff as against Weil and he has not appealed. The judgment in favor of appellants Strauss Co. and Gotham Company has been reversed on the law and a new trial granted. These two appellants have stipulated for judgment absolute in the event of affirmance.

    The questions to be decided are whether the erection of the scaffold above the sidewalk without the presence of any warning may be held to be a nuisance in fact and in such an event whether either or both these appellants are liable as parties who suffered its creation. *Page 448

    Without going so far as to decide that this scaffold constituted a nuisance as matter of law, we hold that, in view of the conditions at this locality, at least an issue was presented to the jury whether it constituted a nuisance in fact. On the trial of this action as against defendant Weil the court correctly charged that the consequences were apparent if any portion of this scaffold should fall. The evidence is that the rope supporting the scaffold was not properly hitched and that "a considerable number of the men don't know how to make the proper hitch, sheer luck keeps them up." Courts take judicial notice of the fact within common knowledge that work performed on scaffoldings on the outside of buildings abutting on highways is attended with danger to those using the sidewalk and that reasonable measures, such as barriers or warning notices, to prevent such danger must be employed. (Doll Sons, Inc., v.Ribetti, 203 Fed. Rep. 593, 598, 599.) The same doctrine is strongly intimated in Hexamer v. Webb (101 N.Y. 377, 385,386).

    Assuming that Weil was an independent contractor rather than an employee of Strauss Co., this appellant cannot escape liability. It set in operation a process fraught with potential danger as an obstruction to a highway. Even though it intrusted the work to an independent contractor, it committed a breach of duty to the public to keep the highway in a safe condition for travel while the work was in progress and this duty cannot be delegated. (Deming v. Terminal Ry., 169 N.Y. 1; Mullins v.Siegel-Cooper Co., 183 N.Y. 129; Boylhart v. DiMarco Reimann, Inc., 270 N.Y. 217, 221.) Strauss Co. is, therefore, liable.

    Appellant Gotham Silk Hosiery Company, Inc., as lessee of the entire building, is in the position of an owner in possession. At least two of the signs on the roof, as well as two on the ground floor, bore advertisements of its merchandise. It had a contract with Strauss Co. for painting three of the upper signs as advertisements for *Page 449 itself. Although the operation at the time of the collapse of the scaffold related to an advertisement for another merchant, the work of painting had been in progress for a week. The ropes by which the scaffold was suspended were secured to the roof of the building. The photographs in evidence show that it is scarcely possible that they could have been so fastened except by this appellant's permission to entry into the building by the men who attached the hooks to the cornice or parapet. A jury could reasonably infer that this dangerous obstruction to street travel was erected with the consent of this appellant. There is evidence that this appellant did sublease a portion of the premises on the ground floor to one or two other tenants but there is no evidence that it alienated the entire property. Indeed, in the absence of some evidence to the contrary, an inference is permissible and nearly obligatory that the Gotham Company remained in possession and control of this building. Unless an owner has alienated the entire property, the duty is imposed upon him to maintain it in such a condition that it shall not become dangerous to the traveling public. (Appel v. Muller, 262 N.Y. 278, 280.) The same burden rests upon the lessee of the entire premises. This obligation is not limited to the actual structure of the building and its usual appurtenances but applies to temporary attachments and projections over a highway which are dangerous to travelers. The natural tendency of the presence of a scaffold above a street without barricades or warning signals is to create danger and to inflict injury and may be held to be a nuisance in fact. (Doll Sons, Inc., v. Ribetti, supra; Melker v. City of New York,190 N.Y. 481.)

    The order should be affirmed and judgment absolute ordered against both appellants on the stipulation, with costs in all courts.