150 N.Y.S. 169 | N.Y. Sup. Ct. | 1914
Plaintiff’s intestate, a carpenter, was engaged in cutting a hole in the side of a lumber chute which carried concrete from the street into the subway. He was standing on a water pipe 12 inches
There is no exact testimony as to the details of the "place,” since the plaintiff’s chief witness testified, in regard to his knowledge of the measurements of the “place,” “Some of the people told me.” The deceased had tools in his hand, a saw, an ax, and probably a hammer. “He turned. The work had ceased. He was going away to another place.” He started to go along the pipe, fell, and was killed. Neither the pipe nor the platform broke. There is no testimony that the pipe was slippery. Has the plaintiff made out a cause of action (1) under section 18 of the Labor Law, or (2) under the common law as to a safe place in which to work ?
“A person employing * * - another to perform labor of any kind, in the erection * * * of a * * * structure shall not furnish or erect * * * for the performance of such labor scaffolding * * * which are [is] unsafe,” etc.
Even assuming the subway to be a “structure,” there is no evidence to show that the pipe upon which deceased stood was a “scaffold,” nor that it had been furnished or erected by the defendant. In common understanding the word “scaffold” means “a temporary structure of timber, boards, etc., for various purposes, as for supporting workmen and materials in building.” Caddy v. Interborough R. T. Co., 195 N. Y. 415, 88 N. E. 747, 30 L. R. A. (N. S.) 30. This is not alone the definition of the lexicographer, but the judicial construction of the meaning of the word as used in the statute. Emphasizing this construction is the language used in Wright v. Smith, 152 App. Div. 476, 137 N. Y. Supp. 264, that “the scaffold contemplated by the statute is something erected.” This “something erected” cannot be construed as including anything that may be seized on or utilized by a workman for his. convenience to meet the requirements of changing locations or conditions. A temporary resting place for footing or support is incidental to the performance of the work, and to call such place a “scaffold” is a wrench, not only of the language, but of the intent, of the Legislature. This intent was most liberally recognized by the Court of
“This statute is one for the protection of workmen from injury, and undoubtedly is to be construed as liberally as may be for the accomplishment of the purpose "for which it was * * * framed.”
Under this interpretation," while admitting that were the Labor Law to be strictly construed the employé of a subcontractor could not recover from a contractor, yet under certain circumstances the contractor might be held liable to such employé for the insecurity of a “scaffold.” When the Legislature used the word “scaffold,” it used a word of definite meaning and one susceptible of precise application; and to inject into that meaning what was neither expressed nor intended would be judicial legislation, and not interpretation. To broaden the scope of the reasoning in the Quigley Case is for the Legislature, and when the language used in the statute is plain and unambiguous there is nothing to interpret. It is not for this court to say that, when the Legislature required safe scaffolding to be furnished, it meant anything wider or narrower in scope than its plain expression.
On the whole case, as stated on the granting of the motion to dismiss the complaint, I am of the opinion that there was no question for the jury to pass upon. I therefore deny the motion for a new trial.