Kiffin v. Wendt

| N.Y. App. Div. | Jul 1, 1899

Adams, J.:

Giving to the plaintiff’s case all the force to which it is entitled, we are nevertheless persuaded that it fails to establish a cause of action against the defendants. If the accident which resulted in the plaintiff’s injuries is attributable to any cause other than that of the plaintiff’s own negligence, it was due to the insecure manner in which the ladder, which the plaintiff was using as a means of access to the smokestack, was fastened to the roof.

There is no evidence in the case tending to show that this ladder was placed upon the roof by the defendants’ direction or that they had any knowledge that it was there, and just who is responsible for the insecure manner in which it was adjusted does not appear. The presumption is irresistible, however, that it was simply a contrivance which had been constructed and used by the defendants’ carpenter a few days prior to the accident to enable him to reach the smokestack and adjust the same to the hole in the roof through which it protruded. At all events, it is perfectly obvious that the ladder, so far from being a permanent attachment to the building, was merely a temporary contrivance or expedient which had been resorted to for a special purpose and to meet a particular emergency. This being the case, we think it must be regarded as in the nature ■of a detail of the work which the plaintiff and his fellow workmen were called upon to perform.

There is evidence which would undoubtedly justify the inference that Hurley, the defendants’ foreman, knew of the existence of the ladder, for when he directed the plaintiff to assist in placing the hood upon the stack, he told him there was a ladder on the roof and that everything was in readiness; but this fact does not strengthen the plaintiff’s case, for if the use of the ladder was, as has been stated, a detail of the work, and it be assumed that it was placed in position by Hurley or by his direction, he was, under the circumstances of the case, so far as that particular act was concerned, a co-employee of the plaintiff, for whose neglect or omission of duty the defendants were in nowise responsible, even though the plaintiff himself was not cognizant of the defective position of the ladder, and had nothing whatever to do with placing it in that position. (Loughlin v. State of New York, 105 N.Y. 159" court="NY" date_filed="1887-03-22" href="https://app.midpage.ai/document/loughlin-v--state-of-new-york-3585703?utm_source=webapp" opinion_id="3585703">105 N. Y. 159; Cullen v. Norton, 126 id. 1; Butler v. Townsend, Id. 105 ; McCampbell v. C. S. Co., 144 id. 552; Kimmer v. Weber, 151 id. 417; Watts v. Beard, 18 A.D. 243" court="N.Y. App. Div." date_filed="1897-07-01" href="https://app.midpage.ai/document/watts-v-beard-5182487?utm_source=webapp" opinion_id="5182487">18 App. Div. 243.)

But the learned trial justice rested his decision in part upon the assumption that the accident of which the plaintiff complains was in. some measure, at least, due to his own negligence, and there is certainly much in the case to support such a conclusion.

It must have been perfectly apparent to the plaintiff when he-reached the roof that the ladder which he found there was not. attached to the roof, arid had no other support* than such as was furnished by the cleat against which it rested. If, therefore, it was. insecure, if its adjustment was defective, the plaintiff had quite as; good an opportunity to know that fact as the defendants; and if with this knowledge he assumed the risk, he ought not now to be heard to complain. We do not, however, deem it necessary to discuss this branch of the case, inasmuch as the first ground which we have considered is, in our opinion, sufficient to uphold the nonsuit, and we prefer to rest our decision upon that. -

The judgment and order appealed from should be affirmed, with. costs.

All concurred ; Spring, J., not sitting.

Judgment and order affirmed, with costs.