Gaulkin, Sullivan and Foley. The opinion of the court was delivered by Sullivan, J.A.D.
This appeal challenges the propriety of a judgment of involuntary dismissal of plaintiff's suit for damages for injuries suffered in a fall from a second-story window in defendant's hospital building.
Plaintiff was a window washer employed by the New Brunswick Window Cleaning Company (hereinafter called Brunswick), an independent contractor which had washed the windows in defendant's hospital building over a period of years and antedating the erection in 1946 of the south wing of the hospital. The windows in the hospital were of two types. In the main building they were double-hung sash windows which could be raised or lowered. Some of these windows had hooks on the outside for the fastening of a safety belt. In the south wing, erected in 1946, the windows also had double-hung sashes which could be raised
or lowered. In addition, each of the sashes of these windows could be pivoted vertically by the application of pressure. There was no locking device on these windows which had to be released to activate the pivot. None of these windows were equipped with outside safety hooks, nor did they have any marking thereon to distinguish them from the other windows.
Plaintiff had washed windows at the hospital on three or four previous occasions, but had never worked there above the ground floor. He testified that no one told him that the windows in the south wing pivoted or that they differed from other windows in the hospital. Although plaintiff had worked off and on as a window washer for about three years and also had some experience as a carpenter, he claimed that he never heard of a pivot window prior to the accident.
On the day in question plaintiff had washed a number of windows on the third or top floor of the hospital, including several in the south wing. He then went to the second floor with two other men who were working with him, and they continued their chores until plaintiff suffered his mishap. Plaintiff testified that while washing a second-story window in the south wing he had seated himself across the sill as he always did, so that the trunk of his body was outside of the window and his legs were inside, with his lower legs hanging down from the sill. While in this position and while pulling the lower sash down so that he could wash the outside of it, the window pivoted out under the pressure of his hands, causing plaintiff to lose his balance and fall over backwards to the ground. He suffered serious injury.
By his complaint filed in this cause plaintiff charged that defendant had failed to provide safety devices on the window for the protection of window washers and that the window was maintained in a defective condition. At the pretrial plaintiff added the contention that defendant was negligent in not instructing plaintiff or his employer "as to the nature and operation of the window, nor the manner in which to clean it, or that it had a pivoting sash."
At the trial plaintiff did not attempt to prove that the window was defective or improperly installed, was not standard construction, or that the absence of hooks for safety belts on the window was evidence of negligence. The issue therefore narrowed down to the single question of whether defendant was under a legal obligation to call plaintiff's attention to the pivot windows and instruct him as to their method of operation. (In his brief plaintiff takes the position that notice to plaintiff's employer would not have been sufficient to relieve defendant of its obligation to plaintiff.) At the conclusion of plaintiff's case the trial court granted defendant's motion for an involuntary dismissal, holding that there had been no proof of the violation of any duty owed plaintiff.
It is the contention of plaintiff on this appeal that defendant had a legal duty at least to tell him about the pivot windows, because otherwise the circumstances of having two types of windows in the hospital without markings thereon to differentiate them, the fact that the windows in the south wing pivoted outward upon the application of pressure, and the lack of outside hooks on these windows for the attachment of a safety belt, all combined to create a hazardous condition. Ancillary thereto, the inference is sought to be made that if plaintiff knew these windows pivoted and both sides of the glass could be washed from inside the building, he would have done just that.
It is settled law that where the owner of property engages an independent contractor to do work upon his premises, an employee of the contractor, while on the premises executing the work, is an invitee of the property owner, since he is there presumably by the request of the owner who is under a duty to exercise ordinary care to render the premises reasonably safe for the purposes for which the invitee enters. Gudnestad v. Seaboard ...