17 N.Y.S. 349 | New York City Court | 1892
This is an action to recover, by plaintiff, damages for the death of her husband, on the claim that it was caused solely by the negligence of the defendants. The defendants, Ferguson, on the one hand, and Bulch and Mehrman, who are partners, on the other hand, appeared and defended separately. At the conclusion of plaintiff’s proof, the complaint was dismissed as to Ferguson, and judgment was entered thereupon. The case, at the conclusion of all the proofs, was submitted, as to the other defendants, to the jury, who rendered a verdict in their favor. Judgment was entered thereupon. The plaintiff appeals from both judgments, and also from order denying motion for new trial as against the defendants Bulch & Mehrmann. Cooper & McKee were the owners of a large four-story frame factory on Gwinnett street, Brooklyn, and a small one-story building adjoining, which was used as their office. At the time of the accident, and for months prior thereto, extensive alterations and repairs were being made to both. They had a separate contract with defendant Ferguson to do one portion of the work, and a separate contract with defendants Bulch & Mehrmann to do the other portion. The latter, while engaged in the performance of their contract, and for their use therein, erected a large scaffold, 60 feet long, in front of the large building some weeks prior to the accident. The defendant Ferguson, a few days prior to the accident, being required by his contract to place a cornice over the window of the office building, erected for that purpose a small scaffold about 8 feet high in front of the office, and one of his workmen had used it in putting this cornice in position. On the day of the accident none of Ferguson’s workmen were upon this small scaffold. But three of Bulch & Mehrmann’s workman, including the decedent, Michael Mauer, were at work upon their own large scaffold, boarding up the front of the large
Let us now test the claim of plaintiff against defendant Ferguson by this-sound statement of the law, There was no privity of contract between Ferguson and Mauer, who was not his employe. Mauer was not upon the scaffold by Ferguson’s invitation or upon his business. He had no reason for being there at all with which Ferguson was connected or concerned. The defendant Ferguson did nothing to cause the death of Mauer, but it was brought about by his own unauthorized invasion of or interference with Ferguson’s rights in getting upon Ferguson’s scaffold. The deceased had not even a license or permission, express or implied, from Ferguson to go upon this scaffold. Ferguson was a stranger in this occurrence to Mauer, and to his employers, Búlch & Mehrmann, as much so as if Mauer had been a passer-by, and had climbed upon this scaffold. Cusick v. Adams, 115 N. Y. 55, 21 N. E. Rep. 673; Swan v. Jackson, (Sup.) 7 N. Y. Supp. 821; Loop v. Litchfield, 42 N. Y. 358, see page 361. The extension, under certain circumstances, of the duty to be careful in workmanship, which the constructor of a scaffold owes to him for whom he has contracted to build it, to those authorized or employed by the owner to use it, though there is no privity of contract between them and the constructor, will not help the plaintiff herein; for the defendant Ferguson, who was both constructor and owner of this scaffold, did not authorize or employ the decedent, Mauer, to work thereupon. Devlin v. Smith, 89 N. Y. 470; Coughtry v. Woolen Co., 56 N. Y. 124. Then, again, this scaffold can scarcely be deemed a structure “imminently dangerous to human life, ” within the meaning of those authorities. Loop
This disposes of all the exceptions called to our attention by the appellant, save that taken to the exclusion of the following question put to the witness Bodemann: “Question. Was that scaffold put up right, do you think?” This was one of the principal questions to be determined by the jury. This witness was allowed to and did testify that he did not know what made it fall; that the brackets were good; that he did not know how many nails were in them, and did not look to see. Why should he be allowed, under these circumstances, to say that it was not put up right? The only defect attempted to be shown was that there were not enough nails of the right size in the bracket, and he says he did not look to see the nails, and did not know how many were in it. If counsel desired the expression of opinion of this witness upon his asserted defects in this scaffold, he should have framed an hypothetical question on the assumption of such defects. The witness says he was ignorant of the existence of any such defects. Both judgments and the order must be affirmed, with costs.