Marks v. New York City Transit Authority

Appeal by defendant-appellant from a judgment of the Supreme Court in favor of plaintiff, entered June 2, 1959, and amended on August 17, 1959, in New York County, upon a verdict rendered at a Trial Term. Appeal by third-party defendant from that part of said judgment directed in favor of defendant on its cross complaint over against third-party defendant.

Per Curiam.

On August 26, 1954, the plaintiff, an experienced painter employed by Metro Decorating Co., Inc. (Metro) sustained an injury when he fell from the top of a change booth located on the 59th Street and Lexington Avenue subway station of the New York City Transit Authority (Authority). At the time, plaintiff was using the booth as a means of descent from an area above the booth where he had been painting. Metro was an independent contractor that was painting the subway system pursuant to a contract with the Authority. In this suit, plaintiff recovered a verdict of $60,000 from a jury against the Authority, and the trial court directed judgment in favor of the Authority against Metro on a third-party complaint. The Authority has appealed from so much of the judgment against it; and Metro has appealed from the entire judgment.

The trial court submitted the case to the jury on two theories of liability. Plaintiff claimed that the top of the change booth had dirt and grease on it, and that the Authority was liable by reason of its alleged negligence in the maintenance of the booth. Moreover, plaintiff urged that the Authority be held responsible under sections 200 and 240 of the Labor Law in that it had assumed such control and custody of the painting work that it directed the manner in which the work was to be done as well as what work was to be done. In particular, plaintiff maintained that in descending from the mezzanine, where he had been painting, via the top of the change booth, he was responding to the express directions of the Authority’s inspector on the job. The jury was instructed on these two phases of plaintiff’s claim. On the Labor Law issue the jury was told that if they should find that the Authority was directing plaintiff in the method of performance of the work, the plaintiff could not recover rmlpgg it was found that in coming down from the area which plaintiff was painting onto the change booth, plaintiff was obeying the orders or instructions of the Authority’s inspector rather than his own inclinations or the orders of his own foreman.

On a motion to set aside the verdict, the trial court, although stating that it was impossible to ascertain upon which theory the jury had returned a verdict in favor of plaintiff, nevertheless denied the motion despite a conclusion that there was insufficient evidence of any violation of the pertinent sections of the Labor Law. We agree that any verdict based on plaintiff’s claim that the Authority’s inspector told plaintiff to come down from the mezzanine was against the weight of the credible evidence. (See Politi v. Irvmar Realty Corp., 7 A D 2d 414.) Although this palpable attempt to come within the ambit of Broderick v. Cauldwell-Wingate Co. (301 N. Y. 182) taxes credulity, it may not be dismissed as incredible as a matter of law. Hence, whether the inspector gave directions, and if such directions were given, whether plaintiff heeded them or was bound to follow them, must remain questions of fact for the jury.

On the appeal by Metro from the judgment on the third-party complaint, we find that the indemnity agreement, upon which the Authority relied, falls short of manifesting a clear and unequivocal intent to protect the Authority against the consequences of its own negligence. (Jordan v. City of New York, 3 A D 2d 507, affd. 5 N Y 2d 723.) While there are similarities in the agreement in Jordan and that in the instant case, there is absent the all-embracing language in Jordan upon which the intent to indemnify against the negligence of the city was spelled out.

The judgment against the Authority should be reversed on the law and the facts and a new trial granted, with costs to the appellant Authority. The judgment on the third-party complaint should be reversed on the law, and the third-party complaint dismissed, with costs to appellant Metro.