142 N.Y.S. 65 | N.Y. App. Div. | 1913
The plaintiff was in the employ of the defendant as a painter, and on the morning of the 21st of December, 1910, he was assisting in painting the ceiling of the cabin for women on the ferryboat Richmond, and the scaffold on which he was standing gave way, precipitating him to the floor of the cabin, inflicting injuries to recover for which he brought this action.
The scaffold was erected on appliances known as horses, which had been constructed for the city about four weeks prior to the accident- under the supervision of a foreman in charge of the carpenters in the department of docks and ferries, and the only other place they had been used was in doing work on the ferryboat Brooklyn. The horses were about seven feet high, and the longitudinal header forming the top was a piece of three by four inch spruce timber six feet long. The four legs were of yellow pine four inches wide by one and. one-quarter inches in thickness and about seven and one-half feet in length, and they spread so that resting on the ground they were seven feet apart, lengthwise of the horse, and two and one-half feet across the ends. Under the header at either end there was a brace, consisting of a strip of white pine seven-eighths of an
The plaintiff wasistanding on one of these planks in the middle section of the scaffold, or the third section from either end. There were between forty and sixty painters working on the scaffold, or about ten on each section, or two on each plank. Two pointers working on the same section with the plaintiff, or an adjoining section, had an argument, and one of them jumped off the platform, and the other, on being dared to come down, followed, and they clinched on the floor below and were thus struggling for two or .three minutes when they were stopped by the acting foreman, who ordered them to leave the boat or return to their work. During this encounter twenty-five or thirty of the painters congregated over the painters’ ladder or platform connecting the two sections under which the encounter was taking place. On being separated and ordered off the beat or to return to work, one of the men passed up the stairs and over the banister onto the scaffold, but the other, who weighed about 180 pounds and who appeared to .be in a frenzy, rushed to the side of the" cabin'
The negligence for which it is sought to hold the city liable, however, is not in failing to provide ladders or to prohibit such use of the braces, but in violating the provisions of sections 18 and 19 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36). The provisions of section 18, so far as material to a decision of the questions presented by the appeal, are as follows: “Scaffolding for use of employees. A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper
It is contended at the outset by - the learned counsel for the city that these provisions of the Labor Law do not apply to a municipal corporation. Although municipal corporations are not designated by name, they are included in the term “person” employed in the statute, which is "defined by section 37 of the General Construction Law (Consol. Laws, chap. 22; Laws of 1909, chap. 27) as including corporations and joint stock companies; and section 4 of the Labor Law shows that some of the provisions thereof, at least, were intended to apply to municipal corporations, for it is therein expressly declared, among other things, that any officer of a municipality “ having a duty to act in the premises ” who violates any of the provisions of the Labor Law shall he guilty of a malfeasance in office and liable to suspension or removal. There is no ground upon which it can fairly he inferred that the Legislature did not intend that these statutory provisions should apply to municipal corporations, particularly where, as here, engaged in "a private corporate enterprise for revenue as distinguished from the performance of public governmental duties. (See Townsend v. City of Boston, 187 Mass. 283; Davies v. City of Boston, 190 id. 194; Oakes Mfg. Co. v. City of New York, 206 N. Y. 221; Dillon Mun. Corp. [5th ed.] § 1645; 2 Labatt Mast. & Serv. § 662.)
We are of opinion, however, that the evidence does not show a violation of either section of the Labor Law. It is manifest .that the scaffold was neither. unsafe, nor unsuitable, nor improper for the purpose for which it was designed. It was not shown that it was. not so constructed and placed as to give proper protection to the lives and limbs of those employed upon the work. The defendant could not foresee and was under no legal duty to guard against the violent use of the scaffold by an enraged workman which resulted in its collapse. Great
It follows, therefore, that the judgment and order should be reversed and new trial ordered, with costs to appellant to abide event.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.