The plaintiff was at plumbing work" on the third floor of a building under construction. The defendants were the contractors for the iron work therein. They had set up vertical iron bars from floor to ceiling in front of the open elevator shaft, which were called channel bars, and which were designed to hold the fire bricks making the “final wall” of the shaft. At the time of the accident a scaffold six feet above the floor, laid upon, wooden supports called
The plaintiff and his witness Raymond admit that one could have gained a passage under the scaffold, but they as'sert'that the space thereunder was incumbered by fireproofing, barrels, laths and other material., Raymond admits, however, that one could have moved three or four bundles of laths and passed, underneath the scaffold in perfect safety, if he had “ gone and asked permission of the lather or whoever owned the property that was there.” There was a sharp contradiction as to whether there was any material impediment. But further, there is convincing evidence that at this time there was a passageway, evidently .the projected hallway, running from front to rear, in such condition that one could pass along it. The plaintiff testifies that he did not look to see whether there
I think that there is no negligence shown as against the defendants. The case falls within the rule that negligence is riot imputable to an accident, not “ the reasonable, natural and probable result ” under the circumstances, “ which ought to have been foreseen by the defendant in the exercise of ” due prudence. I have collated some of the authorities in McKenzie v. Waddell Coal Co. (89 App. Div. 415) and in Saverio-Cella v. Brooklyn Union R. R. Co. (55 id. 98) and I need not repeat theiS. The defendants had not finished this work. I cannot see that they lacked due prudence in leaving for a time this iron bar incompletely secured so that they ought to have foreseen, notwithstanding other and natural means of passage, that a workman, if “ not too large ” a man, might attempt to “ squeeze through ” the narrow opening sideways, and in so doing would use the iron bar on the assumption that it was then so secured that he might with impunity use it to widen his passage or to aid his passage or as a fender against the open shaft.
I advise a reversal of the judgment and order and the granting of a new trial.
Hirschberg, P. J., Bartlett, Rich and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.