28 N.Y.S. 883 | N.Y. Sup. Ct. | 1894
On the trial of this action, the plaintiff was non-suited. The action was to recover damages sustained by the plaintiff by reason of the death of her intestate, which was alleged to have been caused by the defendant’s negligence. The intestate, at the. time of his injury, was at work upon a scaffold which had been erected by the defendant for the purpose of reslating the roof upon its engine house in the city of Utica. The work of reslating was commenced about the 1st of September, 1891. Two of the defendant’s employes, Cole and Warner, who had had some experieuce as slaters, were directed to do the work. The defendant’s superintendent of repairs directed the foreman of the defendant’s carpenter shop to construct “some horses that would be sufficient for men to work on and slate the roof,” without giving any directions or information whatever as to the material to be used, the number of men that were to work upon the scaffold, or whether the old slate was to be used. The carpenter had had no experience in making horses or scaffolds for the purpose for which this was to be used. The scaffold, as constructed, was 16 feet above the ground, about 25 feet in length, and was supported by three horses,—one at each end and one at the center. The horses upon which the floor of the scaffold was placed were constructed by taking four hemlock boards 1 inch in thickness, 6 inches in width, and 16 feet in length, and nailing them to a headpiece or ledger, which was about 4 feet long. Then strips of the same material, 4 inches in width and 1 inch in thickness, were used for stays running crosswise inside of the legs, and 5-inch boards of the same kind were nailed on laterally, as braces or cleats. There were six rows of cleats on the horses first constructed, and upon the others there were but four. The material of which they were constructed was not tested to ascertain whether it was defective or otherwise. They were set up next to the building, and planks about 12 inches in width placed on top of them, two being placed side by side from the center horse each way to the other. At first, braces ran up from near the foot of the horses to the middle of the plank which formed the floor, but the passing of engines required these to be taken off from time to time, and after a few days they were not put on again. One of the horses was broken by an engine before the time of the accident, and the
It was proved that hendock boards were not a proper or substantial material of which to construct the uprights or legs for such horses or scaffold; that hemlock lumber is usually of loose fiber, brittle, and cross-grained; that such boards do not hold nails well; that they split and are weakened by nailing on braces; and that, where hemlock is used as supports for scaffolds, two by fours or three by fours are ordinarily used. The evidence was sufficient to have justified the jury in finding that the scaffold was used in the manner contemplated when it was constructed; that the use was reasonable, if the scaffold had been properly constructed; and that the defendant’s superintendent knew of the manner in which it was. used, and how it was constructed, before he sent the plaintiff’s intestate to work upon it. The evidence also tended to show that the accident was occasioned by the giving away of one or more of the horses upon which the planks for the platform.were placed, and that after the accident the condition of these horses was such as to indicate quite plainly that such was the cause of the accident. We think it is quite manifest from the evidence that the jury would have been warranted in finding that the fall of the scaffold, and consequent injury of the plaintiff’s intestate, were due to the structural weakness of the scaffold, which originated from the use of insufficient and improper materials, and from being constructed in an unsubstantial and improper manner. A master owes to his servant the duty of furnishing adequate and suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor, and assist in the performance of his work. No one of these duties can be delegated by the master to a servant, of any grade, so as to exonerate the master from responsibility to another servant who has been injured by its nonper
“When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger. This is the master’s duty, and however he may choose to exercise it, whether through the supervision of a superintendent, or some lower grade of employment, it still continues his duty; and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned by its nonperformance. Laning v. Railroad Co., 49 N. Y. 521, 532; Corcoran v. Holbrook, 59 N. Y. 517.”'
When the master orders a servant to perform his work in a place prepared for him, the servant has a right to assume that the place' has been made reasonably safe by the master through other and competent servants. Kranz v. Railway Co.. 123 N. Y. 1, 4, N E. 206. In Benzing v. Steinway, 101 N. Y. 547, 551, 5 N. E. 449, it was said:
“It has been repeatedly held that the risks of the service which a servant assumes in entering the employment of a master are those only which occur after the due performance by the employer of those duties which the law enjoins upon him, and that the negligence of the master co-operating with that of a servant ,in producing injury to a co-servant renders the master liable. Stringham v. Stewart, 100 N. Y. 516, 3 N. E. 575, and cases cited. * * * The master is chargeable, ordinarily, with knowledge of the means necessary to be employed.in performing his work; and, when their procurement and selection is delegated to a servant, he stands in the place of the master, in discharging those duties, and the servant’s neglect in that office is chargeable to the employer, as an omission of duty enjoined upon him. Ellis v. Railroad Co., 95 N. Y. 546; Slater v. Jewett, 85 N. Y. 62.”
The trial court, in effect, held that the question of the contributory negligence of the plaintiff’s intestate was, .under the evidence, a question of fact for the jury. In this conclusion we concur. But it held that the evidence was insufficient to justify it in submitting' to the jury the question of the defendant’s negligence. Thus, the question to be determined is whether there was sufficient evidence