Scott v. Chapman-Kruge Corp. (240 A.D. 735, 1933)

Order granting motion to set aside verdict modified by adding thereto the words “ and a new trial ordered,” and as so modified affirmed, with costs to abide the event. Lazansky, P. J., Carswell and Davis, JJ., concur, with the following memorandum: The danger in connection with the erection of the wall and the necessity for the protection of the so-called west door were recognized on July third and tenth. The wall had been erected and the accident did not occur until October third. There is a question as to whether defendant telephone company was bound to anticipate the dangers arising from the particular acts occurring on that day. It is this question that necessitates a new trial. The defendant telephone company was the owner and general contractor, charged with the primary duty of exercising reasonable care. The proof discloses a basis for finding a breach of this primary and non-delegable duty (Wohlfron v. Brooklyn Edison Company, Inc., 238 App. Div. 463, decided by this court on June 3, 1933) in omitting to provide the requisite covering needed to protect both the public and the workmen, if the need for that protection continued up to and including October third. The’owner, in its capacity of general contractor, supervised the work and was under a duty not to omit doing that which would enable the various subcontractors to do their work under circumstances of safety. Hagarty, J., dissents and votes to dismiss the complaint. Young, J., dissents from the modification and votes to dismiss the complaint upon the ground that the record does not contain any proof showing that defendant telephone company supervised or controlled the work of construction.