123 N.Y.S. 892 | N.Y. App. Div. | 1910
Lead Opinion
The plaintiff’s intestate was employed by a general contractor who was engaged in the ¿onstruction of the public library building on "Fifth avenue and Forty-second street. The deceased appeared to be in the general employ of the contractor at times, painting the iron work that supported the roof, and at times engaged in other occupations about the building. The defendant was working under a sub-contract in inserting certain ducts on the inside of the roof of the building for the purpose of ventilation. To paint the inside of the roof of the building before the insertion of the ducts the plaintiff’s intestate and one Benson had been in the habit of constructing for themselves a scaffold, painting in advance of the men employed in constructing the ducts. The defendant erected a scaffold close to the roof which seems to have been in two sections, one of which was erected in advance of the one upon which the men Were at work, to be used by the defendant’s employees as the work progressed. There was a man named Walters employed by the defendant, who was in charge of the men engaged in inserting these ducts. Walters suggested to Benson and the deceased that he and the deceased should use defendant’s scaffolds for painting instead
Hpon this evidence the plaintiff was nonsuited and the correctness of such nonsuit is presented upon this appeal.
Section 18 of the Labor Law (Gen. Laws, chap. 32; Laws of 1897, chap. 415; re-enacted in Consol. Laws, chap. 31; Laws of 1909, chap. 36) provides that “ 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 constructéd, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” It was held in Stewart v. Ferguson (164 N. Y. 553) that this section “is a positive prohibition laid upon the master without exception upon' account of his ignorance or ‘the carelessness of his servants. * * * Its [the scaffold] fall, in the absence of evidence of other producing cause, points to the omission of the duty enjoined by the statute upon the defendant to the plaintiff in its construction, and points to it with that reasonable certainty which usually tends to produce conviction in the mind in tracing events back to their causes, and thus creates a presumption. It is circumstantial evidence, and if it does convince the jury it justifies their verdict.”
We start, therefore, with the proposition established , by the evidence that there was u pon this defendant an absolute duty to construct a safe, suitable and proper scaffold to afford, proper protection to the life and limb of the persons employed to work thereon, and that its fall in the absence of evidence of other producing cause, points to the omission of the duty which is sufficient to justify a- verdict of the jury that the defendant was guilty of negligence in furnishing this scaffold. It seems to me there could be no question but that- if the deceased had been in the employ of the defendant there would have been a question presented which required its submission to the jury; but the deceased was not in the employ of the defendant, but was
I think, therefore, upon this evidence a question was presented as to the defendant’s negligence and whether tlie death of the
It follows that the judgriient appealed from must be reversed , and á new trial ordered, with costs to the appellant to abide the event. .
Clarke, Scott and Dowling, J j., concurred; McLaughlin, J., . dissented.
Dissenting Opinion
(dissenting):
I dissent on the ground that the defendant owed the intestate no duty "with reference to the. scaffold in question. It was not constructed for him. to use, and the defendant did not expressly or impliedly consent to his using it. .
judgment and order reversed, new trial ordered, costs to appellant to abide event.