85 N.Y.S. 935 | N.Y. App. Div. | 1903
The plaintiff was injured while engaged in the employment of the defendant in the construction of an extension to a storage warehouse-in the borough of Brooklyn. He was putting in terra cotta arches at the time of the accident between iron girders or floor beams. The construction of the arches required the use of a temporary arch upon which to lay the bricks of terra cotta which formed the permanent arch. The temporary or false arch was made of iron ribs adjustable to the size desired and covered with wooden lattice work, and when in place it was suspended at either end by a notch cut in a hanger, which fitted upon the flange of the iron girder and was securely fastened to the girder by a sdrew clamp in the hanger. The temporary arches were furnished to the defendant by an independent contractor under a contract which required such contractor to set them in the building as well as to provide them for that purpose. The contractor was apparently reputable and responsible; the form of the temporary arches had been in use many years, and during that period had been employed in the construction of many important buildings; the temporary arches were set in the building in question by experienced men; and the particular arch which fell with the plaintiff was found after the accident in a condition which enabled it to be used afterwards in the completion of the building. The accident occurred while the plaintiff was standing upon one of the temporary. arches and while he was engaged in setting terra cotta bricks upon it, in the course of which process for. some undisclosed reason it fell with him to.the floor below.
There was some evidence that this particular arch was securely set. The only, evidence tending to indicate what would be likely . to cause any of the arches to fall if properly set was directed to an alleged practice on the part of the defendant’s workmen when diffi
There was no evidence of structural defect in the arch which fell, and the natural inference from the evidence is, therefore, that the fall was occasioned by either some negligence in the act of setting the arch in the first place or in dealing with it after it was set by the defendant’s workmen in the process of working on the building. In neither case would the negligence be chargeable to the defendant in the absence of knowledge, express or implied, or in the absence of proof that it resulted from incompetent servants or from an insufficient number of servants. Under these circumstances the ■ doctrine of res ipsa loquitur does not apply, as the rule can only be invoked, as between master and servant, if at all, where the facts not only warrant an inference of negligence, but also establish that such negligence was that of the master. (Fink v. Slade, 66 App. Div. 105; Moran, v. Munson Steamship Line, 82 id. 489, and cases cited.)
The learned counsel for the plaintiff claims that the temporary arch is to. be regarded as a scaffold within the meaning of section 18 of the Labor Law (Laws of 1897, chap. 415), and that the negligence of the defendant is, therefore, to be assumed from the mere fact that it fell. I do not think that the temporary arch can be so regarded. Its primary purpose was to support and shape the permanent arch until that arch should be set and hardened sufficiently to justify the removal of the temporary structure. It no more
In the absence of statutory liability the plaintiff’s claim has no foundation upon any proven act of negligence on the part of the defendant, and his exceptions should, therefore, be overruled and the motion for a new trial denied.
Present— Goodrich, P. J., Woodward and Jenks, JJ.
Plaintiff’s exceptions overruled and motion for new trial denied, and judgment unanimously directed for the defendant, with costs.