Employers' Liability Assurance Corporation v. Empire City Iron Works

[7 A.D.2d 1012 Page 1012] In January, 1948, and for some time prior thereto, Consolidated Edison Co., Inc., owner and general contractor, was engaged
in construction work at its gas plant in the Borough of The Bronx, City of New York. United Engineers & Constructors,
Inc., was a subcontractor, as was Empire City Iron Works, Inc. On January 28, 1948, one McShane, an employee of Empire, was
unloading a truck and was injured when a piece of fabricated steel fell and struck him, causing him to lose his right arm
and to sustain other injuries. Empire was the owner of a hand winch which was installed on the roof and was being used by
the employees of United, with the permission of Empire, to raise the fabricated steel. No barriers or warning signs had been
placed on the ground below. When the steel had been lifted about 20 feet from the ground, a loud snap was heard, the handles
of the winch flew out of the control of the employees of United, and the steel fell to the ground, turned over a few times
and hit McShane. He thereafter commenced an action to recover damages for personal injuries against Consolidated and United,
alleging in part that they were negligent in that they failed to take proper precautions and safeguards tp prevent him from
being struck by a load of iron or steel which was carelessly being raised by their employees and, further, in that they directd
him to work under dangerous and unsafe conditions and failed to provide him with a safe place to work. Before McShane's action
came to trial it was settled by the payment of $49,000 to him by the Employers' Liability Assurance Corporation, the insurance
carrier of Consolidated and United, in their behalf. The carrier then brought this action against Empire City Iron Works,
Inc., as subrogee of Consolidated and United, to recover the money paid in settlement of the McShane suit, upon the ground
that they were passively negligent, while Empire was actively negligent (first cause of action) and, further, that Empire
had agreed to indemnify Consolidated (second cause of action). The case was tried before the court without a jury. Empire
rested at the end of Employers' case and moved to dismiss upon the ground, among others, that Employers' is not entitled to
indemnification if there was no liability on the part of either United or Consolidated and if the money was voluntarily paid
to buy their peace. The court found that the steel was caused to fall solely by reason of a negligent [7 A.D.2d 1012 Page
1013]