139 F. 734 | U.S. Circuit Court for the District of Southern New York | 1905
This is a motion by the plaintiff for a new trial, a verdict having been directed upon the trial for the defendant.
The plaintiff was one of a gang of five men employed by the defendant in doing mason work in the subway in the course of construction at New York City in November, 1901. He and two others of the five were masons, and the other two were helpers. The masons worked upon a scaffold, which, from time to time, as the work was finished by them at the place where it had been put up, was taken down by the helpers, and put up again by them at an adjacent place, when the masons again mounted the scaffold and resumed their work. It was the duty of the helpers to assist the masons generally in the work, and they were under the directions of the masons. The plaintiff’s action was brought to recover for injuries received by him by the falling of the scaffold, and the
“There is in this ease no element of negligence, except that which consists of the omissions of some of the helpers in the plaintiff’s gang of workmen in erecting the scaffolding in a proper way. The defendant furnished a proper and suitable scaffolding, but, in adjusting it, as was required from time to time, to a new location, the helpers did so improperly, and in consequence it fell when the plaintiff was using it.”
There is no dispute about the facts, and that they were as stated by the court is conceded; but it is insisted for the plaintiff that because of the provisions of the labor law of New York (chapter 415, p. 461, Laws 1897, as amended by chapter 192, p. 350, Laws 1899), contained in sections 18 and 19 (page 467), the defendant was liable, notwithstanding the scaffold became unsafe solely by the negligence of the plaintiff’s fellow servants. The sections read as follows:
“Sec. 18. 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 protection to the life and limb of a person so employed or engaged.
“Sec. 19. All swinging and stationary scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon, when in use,” etc.
There is no doubt that these sections contain “a positive prohibition laid upon the master, without exception on account of the carelessness of his servant.” Stewart v. Ferguson, 164 N. Y. 553, 556, 58 N. E. 662, 663. The question is, however, whether they refer to a scaffolding which when furnished and erected is safe and suitable, but becomes unsafe merely because of the careless way in which it is adjusted by the men who are to use it in the course of their work.
If it had been the purpose of the statute to make the master liable to his servant for all the negligent acts of his other servants in the same employment, including the fellow servants of the servant injured, that intention could have been, and doubtless would have been, expressed in a few words, and so plainly as to be unmistakable. Such a rule of liability would be so radical a departure from existing law, and introduce into the large industries of the country such incalculable hazards of loss to the employers of labor, that the purpose to adopt it is not to be attributed to the Legislature in the absence of plain language to that effect.
According to the law of New York, as declared by its highest court, a scaffold is not a place, within the meaning of the rule that it is incumbent upon the master to furnish a servant with a safe place in which to work, but is an appliance. Butler v. Townsend,
The motion is denied.
