126 N.Y.S. 979 | N.Y. App. Div. | 1911
Lead Opinion
The judgment should be reversed and a new trial granted, with costs to appellant to abide event.
The action was for negligence. The plaintiff was an employee of defendant and was injured by falling from a ladder. It was claimed the sides of the ladder were not strong enough, and when plaintiff was going up it bent over sideways and he was thrown down and quite seriously injured. The ladder was thirteen or fourteen feet long and was being used to go up a distance of twelve feet.
The action was brought under the Labor Law (Gen. Laws, chap. 32; Laws of 1897, chap. 415 ; Consol. Laws, chap. 31; Laws of 1909, chap. 36). Section 18 provided : “A person empoying 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 liinb of a person so employed or engaged.”
There seems to be no question but that the labor being performed by plaintiff was in the erection, repairing or altering of a house, building or structure. The jury could very likely find that the ladder was unsafe, unsuitable and improper, and not so constructed as to give proper protection to life and limb, and under this statute the defendant, therefore, might be regarded as negligent. Under Cummings v. Kenny (97 App. Div. 114) there was an accident to
He was familiar with the use of the extension ladder. It was a simple contrivance. He knew as much about it and its use as Adam§. [the superintendent] did. ■ It is not claimed he needed to' be instructed. It has been repeatedly held that if injuries befall an employee from the use of a simple implement or contrivance of this kind the master is not liable.” - (Citing Marsh v. Chickering, 101 N. Y. 396, and other cases.)
In Smith v. Green Fuel Economizer Co. (123 App. Div. 672) an employee fell from a ladder upon a shaft, and the Second Department, Appellate Division, reversed the judgment in his favor, applying the same rule laid-down by Spring, J., above, and citing that case and the cases therein referred to. And in McMillan v. Minetto S. C. Co. (134 App. Div. 28) an injury to an employee resulted from a fall caused by a cleat upon a board working loose in its use. He could have observed the loosening of the cleat and have tightened it up. We reversed the judgment in his favor, Spring, J., saying : “ The implement he used was a simple contrivance, and the work he did with it was not complicated or difficult to comprehend. * * * We appreciate the rule .which requires the master to furnish suitable appliances for his servant. * * * It has, however, often been held that a master is not liable in damages for injuries to his employee resulting from the use of a simple implement.” (Citing 115 and 123 App. Div. supra.)
All concurred, except Kruse, J., who dissented, in a memorandum.
Dissenting Opinion
I agree that the evidence was sufficient to carry the case to the jury, but go further. I think the questions of fact were fairly
The duty to see that the ladder was safe devolved upon the defendant. " As was said by Judge Werner, in Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415, 419): “Whenever a scaffold is fúrnished or- caused to be furnished by an employer to be used in erecting, repairing, altering or painting a house, building or structure, it must be safe, suitable and proper,, or the employer is liable.” The statute includes ladders as well as scaffolds.
While, of course, the statute does not take out of the case the questions of contributory negligence and assumption of risk,'those questions, I think, were for the j.ur.y and properly decided. At all events, I think their verdict is not so against the weight of evidence as to require or warrant setting it aside.
Judgment and order reversed and, new trial ordered, with posts to appellant to abide event, upon questions of law and fact.