148 N.Y.S. 675 | N.Y. App. Div. | 1914
On the 23d day of January 1912, the plaintiff, while in the employ of the defendant and in the performance of his duties as a porter in assisting in unloading a barrel of vinegar from a freight car, sustained certain injuries, and this action is brought to recover his damages. The case was tried on the theory of liability under subdivision 1 of section 200 of the Labor Law for a defect in defendant’s plant, and liability for the negligence of a person in the service of the defendant intrusted with superintendence or with authority to direct, control or command the plaintiff in the performance of his duty under subdivision 2 of said.section in assigning him to work on a defective skid. (See Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 200, subds. 1, 2, as amd. by Laws of 1910, chap. 352.)
The defendant’s place of business was at 501 West street, which runs north and south, borough of Manhattan, Hew York, and it was engaged in the business, among other things, of selling vinegar. The defendant had been accustomed to receive consignments of vinegar in barrels delivered in cars on a siding in the street in front of its place of business. The plaintiff had been in defendant’s employ about two months and one week. It was part of his duty to assist in unloading and handling the barrels and he had been performing such duties from the time he entered defendant’s employ. There was a platform about thirty feet long and four feet wide extending over the sidewalk in front of defendant’s place of business. When a car was to be unloaded it was left standing on the siding opposite this platform. The floor of the car was about on a level with said platform. The door of the car was about five and one-half feet in width and as the car stood on the siding it was about over the curb. The defendant furnished a skid nineteen feet in length and thirty-four inches in width, consisting of three two-inch planks fastened together by icon cleats, to be extended from the platform over the sidewalk, a distance of about eighteen feet, to the floor of the car for the purpose of removing the barrels. On the upper surface of the skid there was a track lengthwise of the skid, formed by two strips of wood each about one inch wide and one and one-half inches thick and seven or eight inches from the outer edge, designed
The plaintiff testified that he had had experience in assisting in unloading barrels before from the upper tier in a car, but not when it became necessary to stand on the skid, and that he had had considerable other experience in lifting and
Phelan testified that he put his left hand on top of the barrel and his right hand on the bottom — evidently meaning on the chimes at the upper and lower ends; that he stood with his right foot on the skid outside the rail and not between the rails, and with his back braced against the edge of the door and his left knee “in the car door; * * * on the edge, where a door closed,” and his left leg was “in at the edge ” of the car door at the end of the skid; that “ the barrel fell just about when we got it on our knees, to let it down; ” that it was difficult to describe how the accident happened; and that plaintiff fell off the skid and he could not hold the barrel alone. Plaintiff testified that pursuant to the direction given by Q-rippenstein he went out to Phelan on the skid and told him that he had never done this work before, and suggested that it would be better to take a few of the lower tier barrels out first in order to leave a space on the floor of the car on which to stand, but that Phelan said, “ No, we will take these few barrels from the top down first,” and that he and Phelan then started to lift the barrels from the upper tier down onto the skid. Phelan testified that plaintiff made no suggestion with respect to the manner in which the work should be done, but that plaintiff asked him if he wanted any help and that he
Under the statute before it was amended by chapter 352 of the Laws of 1910, which added the words “or plant,” we held that skids supported by a wooden horse put up and taken down by the employees when necessary, and used for the removal of meat and provisions from a refrigerator car, was not a “ way ” within the contemplation of the statute as it then existed. (Heiser v. Cincinnati Abattoir Co., 141 App. Div. 400.) On an appeal to the Court of Appeals after a new trial on the same case, that court agreed with this court on that point, but reversed on the ground that since it appeared that the defendant had on other occasions borrowed for such use skids which were manifestly more safe, evidence to that effect would have presented a question for the jury as to whether the skids used on the occasion of, the accident were safe. (Heiser v. Cincinnati Abattoir Co., 205 N. Y. 379.) The word “ plant ” is very comprehensive, and as used by the Legislature in this statute it should receive a liberal construction. Under such a construction the skid in question was doubtless a part of defendant’s plant. (*Lipstein v. Provident Loan Society, 154 App. Div. 732; McKeon v. Procter & Gamble Mfg. Co., Id. 740.) There is no evidence in the case at bar, however, that skids of any other construction were in general use by others or had ever been used by the
It follows that the judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.
Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.