16 A.D. 272 | N.Y. App. Div. | 1897
Lead Opinion
When the plaintiff rested the court dismissed the complaint, and the correctness of that ruling is challenged upon this appeal. The plaintiff, a carpenter, in the employ of the defendant, who was engaged in the erection of an armory in the city of New York, was injured by the fail of a scaffold while engaged- in working upon the armory. The fall was occasioned by the breaking of a timber used to support the scaffold. The plaintiff fell to the floor and received severe injuries.
The liability of employers for injuries sustained by their employees in consequence of the insufficient erection or improper material used in the construction of scaffolds has been discussed in several cases quite recently before the courts of this State, and in these later cases the rules that were supposed to govern in determining the liability of employers for injuries of this character have been somewhat modified. In view of the later decisions it is quite apparent that it is impossible to hold broadly that an employer will in all cases be liable for the negligent or improper construction, or the use of insufficient or improper material, in the construction of a scaffold in use by his employees. It is quite apparent now that something more is needed to show that an employer is guilty of negligence than merely to prove that a scaffold in use by his employees was- either improperly constructed or constructed of improper materials to justify a recovery against him. The duty upon an employer to furnish a safe place for his employees to do the work that they are employed to do, and to furnish them with
An examination of a few of the recent cases will, I think) aid us in the consideration of the rules that we now have to apply in determining what facts must exist to establish a violation or a neglect to perform this duty. ' The'rule is broadly stated that there is a duty which every employer “ owes to his employees, and which requires him to furnish machinery adequate and proper for the use to which it is to be applied, and to maintain it in like condition for their protection and safety. * * * For every injury happening by reason of neglect to perform this duty he is liable as for a tort, and this is so whether-the act or omission causing it was due to his personal neglect or the neglect of an- agent employed by him, and whether there are one or more parties concerned as operators or employers can make no difference. The .liability is several as well as joint.” (Kain v. Smith, 80 N. Y. 467.) And again, in' Fuller v. Jewett (80 N. Y. 52), the principle is stated as follows: “We understand the principle of these cases to be that acts which the master, as such, is bound to perform for the safety and protection of his employees cannot be delegated so as to. exonerate the former from liability to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a superior officer, agent or servant of a subordinate or inferior agent or servant to whom the doing of the act, or the performance of the duty, has been committed. In either case, in respect to such act -or duty, the servant who undertakes -or omits to perform it is the representative of the master, and not a mere co-servant with the one who sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury, or of the fact whether it was or was not practicable for the master to act personally, or whether he did or did not do all that he personally could do by selecting competent servants, or otherwise, to secure the safety of his employees.” Starting .with this rule as thus stated, as I can
The case of Benzing v. Steinway & Sons (101 N. Y. 550) was an action brought to recover damages for injuries caused by a scaffold or platform breaking, and the facts in that case, upon which the liability of the employer was predicated, were stated as follows : “ He (the plaintiff) was unexpectedly called from his work in another part of the factory, to assist in putting up girders to support a roof in course of erection over the boiler room. This duty was not in the line of his general employment, and his evidence shows that he had no previous knowledge of the status of the work or of the appliances used in its prosecution. A platform, consisting of five, pine boards painted red, and being one inch thick, fastened together by two hardwood cleats attached to the boards with screws and forming a flooring about four feet six inches wide (the length is not shown), was placed in such a position as to be supported by the wall on one side and an iron beam three feet therefrom on the other, and extending over a vault about eleven feet deep. * * * The plaintiff asked the foreman if it was safe and was informed that it was, * * * He advanced upon it to the place where his services were needed, when the board broke and precipitated him into the
The next case to which I think attention should be called is the case of Butler v. Townsend (126 N. Y. 107), in which the court, seems to have limited the broad application of 'the rule applied in the cases before cited, and to have considered the distinction between the furnishing by the master of a completed structure as. an instrument or appliance for the work of his employees and the. furnishing by the master of proper materials with which such an instrument or appliance is to be constructed, where it'is the duty of' the employees engaged in the same character of work as the person injured to construct such scaffold. In the case there decided the-defendant Was engaged in repairing the exterior hull of a vessel in a. dry dock. Tie engaged two classes of workmen, known in the business as “ lumpers ” and “ caulkers.” The duty of the former-was to erect, staging around the vessel, grave the vessel and put on the felting if necessary and run the metal; and when this Work was-done that of the caulkers followed. The lumpers, under a contract with the defendant, agreed to do the lumpers’ work upon the vessel,, which included the erection of the staging. After that work had been done the caulkers commenced their work. The lumpers, erected the stagings and one of the planks that they used for that purpose being defective, broke with the weight of the men upon it,.
The case of Griffiths v. The New Jersey & New York Railroad Company (8 Misc. Rep. 3; affd. by the Court of Appeals without opinion, 149 N. Y. 595) seems to have been a case in which this distinction between the duty of the employer to furnish.suitable machinery or appliance, or his duty to furnish proper materials with which his employees were to manufacture the machinery or appliances, was again applied. There one Horn was, foreman of workmen upon a building which was being constructed by the
And then, as again emphasizing this distinction, the case of Kimmer v. Weber (151 N. Y. 418) is important. In that case the plaintiff’s intestate was in the employ of the defendants, Who were builders. He was killed by the falling of a scaffold used by the defendants’ workmen in their business. 1 The' question was whether the accident was the result of negligence on the part of the defendants. The plaintiff’s intestate, with others, used a scaffold that they found in the building, and which had been erected by certain plumbers who were also at work in the building. This scaffold was used as a part of the scaffolding for the -masons, and it was insufficient for that purpose. The court, stating the rule to be applied in determining whether or not the furnishing of this .scaffold was a duty of the defendants, said: “ The scaffolding having been constructed by the workmen themselves, or under their-direction, if the appliances which they made use of for. that purpose were in any respect defective or insufficient, they had, so far as appears, the same means of knowing that fact as the defendants. It was not enough to prove that the scaffolding gave way under the circumstances, resulting in an accident, or that it was in fact, defective, unless- it was made to appear that this was thte proximate result of some omission of duty on the part of the defendants or their foreman. If they furnished suitable materials for the construction of a proper platform, and the work
This review of the cases containing the latest expressions of opinion of the Court of Appeals to regulate us in the determination of this question seems to establish this principle : Where an employer employs mechanics to do a certain amount of work, the doing of which requires the use of scaffolds, which it is a part of the work of the mechanics so employed to- construct, and the employer furnishes proper materials with which to construct the scaffolds, the negligent use of such materials, either by improperly uniting them together or by selecting materials not proper for the particular use for which they are selected, whereby one of such mechanics is injured, as the accident was not the result of the neglect of a duty that the master owed to his employees, the master is not liable; and that, to establish a cause of action for such an injury, the plaintiff must prove, in addition to the fact that there was negligence in the selection of the materials for the building of the scaffold, the additional fact that the master, or some one that stood in the relation of representative of the master, assumed to construct the scaffold, and then directed the employees to use it as a constructed' scaffold.
In the case of Bryer v. Foerster (9 App. Div. 542) we held, where it was conceded that a scaffold was improperly constructed, and that the cause of its breaking was the use of a joist in which there was a large knot, and where this scaffold was erected, by the foreman of the employer, who had general charge of the work and directed the employees to use it, that for the negligent construction of such scaffold the employer was liable; and these two cases (Kimmer v. Weber and Bryer v. Foerster, supra) present the distinction which we are to apply in determining the liability of an employer for an injury occasioned by the negligent construction of a scaffold. Where an employer, employs men to do particular work, furnishing them with a completed scaffold as an appliance with which to do >he work, if that completed scaffold is an unsafe or an improper appli
I have cited from these authorities- at considerable length, and stated the rule which seems to#ne to be tire one to be deduced from them, as considerable confusion has existed in regard to the principles to be applied in these cases, and we think it best to do what is possible to furnish a clear guide for the trial courts.
How, applying this distinction, as here stated, to the case at bar,. it is quite.apparent that this nonsuit was entirely proper. Assuming that the complaint was sufficient to charge the defendant with negligence, which, if proved, would justify a recovery, the evidence showed that the plaintiff was. a carpenter, employed to work in the construction of this armory. A few days after his employment he was told to start the sheathing on the balcony. The foreman said: “ There is a scaffold around there and I will send a man around to help you.” This scaffold was built at the time the plaintiff went to work, was about fifty feet in length, and extended clear across one end of the armory; Other men were at work on different sections of the scaffold, which was built of long pieces of timber or sleepers, one end resting upon upright pieces of timber and- the other upon the wall of the building, and on these sleepers there were placed planks, which the carpenters shifted as the work progressed, and upon-which they stood when at work. This scaffold was built in the customary way. The witness was a carpenter, and he testified that it is customary for carpenters, who are engaged in doing this kind of work, to build a scaffold of this kind for the workmen to work upon; that .he went up on the scaffold without looking at it ; that these sleepers which were used were- of locust, and that locust wood is stronger than spruce or other kinds of wood used for that purpose, and that he regarded the scaffold as amply strong
The accident was occasioned by this sleeper, in which there was a knot, breaking when the plaintiff was working upon the scaffold. It is quite clear that this is not a case where an employer undertook to furnish to his employees a completed scaffold as an appliance with which to do the work that they were employed to do, but that part of the work which the employees were employed to do. was the construction of a scaffold; and the employer having furnished proper materials with which to construct the scaffold, any negligence in its construction, either in the selection of the materials from those furnished by.the employer, or want of skill in putting the scaffold together, would not be the negligence of the master — not the neglect of a duty owed by the employer to his employees.
Great stress is laid in this case upon the fact that the plaintiff was employed to do the carpenter work after the timbers or sleepers upon which the planks were to be put had been placed in position by the carpenters .employed by the defendant to do this work; but
"Take the case of painters employed to paint the outside of a building, who are required to work upon a completed scaffold built for that purpose, which is lowered or raised as the work progresses; it is quite obvious that it is the duty of the master to furnish such an appliance; and where the men must rely upon the care of the master of those employed by him in putting together a proper structure necessary for the men to use in the performance of the work upon which they are employed, and where ■ any negligence in the selection of the materials or the proper use of those materials in constructing the completed scaffold would .expose the men to serious danger, neglect in the performance of that duty will render the master liable. Ho such appliance was either furnished by the master or used by the men in this ease. They were required to do carpenter work on the inside of this building. To do such work some kind of a temporary arrangement was necessary to elevate them to a position in which they would he enabled to do the work required of them. It was- the duty of the carpenters, themselves, to erect.such a temporary structure, and their knowledge of its details and require-' ments was certainly as great as that of the master. He furnished them with no completed structure, nor' did he assume to furnish them with such a structure as was necessary to do the work. What he did, and all that he was hound to do, was to furnish the proper, materials for the men to use, not only in boarding the building itself, but in the erection of such a temporary structure as should be necessary to enable them to do the work. What the men deemed necessary as the work progressed was to be supplied by the workmen themselves from the materials furnished by the
In Butler v. Townsend (supra) the “ lumpers ” built the scaffold. One of the caulkers used the scaffold afterwards and was injured'. The decision of the Court of Appeals was not placed upon the ground that at the time the lumpers were building the scaffold the
I think, therefore,/ that the dismissal was right and should be affirmed, with costs.
Barrett'and Ruhsey, JJ., concurred; Van Brunt, P. J., and O’Brien;-; J., dissented. '
Dissenting Opinion
^We agree upon the law, settled by repeated adjudications, that tine master is hound to furnish safe .’appliances for his servants to /work with and a safe place to work; and, where he delegates such. / duty to his foreman or others, he is liable to a servant injured by the neglect of the foreman or those whom he selects. While the law is thus settled, there is always difficulty in its application to the facts of each particular case. Upon appeal, where the complaint has been dismissed, the plaintiff is entitled to the most favorable inferences to be drawn from the evidence. It will not be disputed that it was the duty of the defendant to furnish the plaintiff with a properly constructed scaffold or platform, or with the materials out of which such a platform could be constructed. If, with the latter, he and his fellow-servants, as a detail of their own work, had under
Upon the facts here appearing, I think the case is controlled by the decision in Kimmer v. Weber (151 N. Y. 418) and Bryer v. Foerster (9 App. Div. 542). In the former case, the learned judge writing the opinion at the General Term correctly stated the rule as follows (76 Hun, 483):. “Now, the defendants were bound to use all reasonable precaution necessary to make this scaffolding, upon which their employees were invited to stand and work, safe. The defendants personally do not appear to have paid any special attention to the construction of the scaffolding. That matter they committed to their foreman, Joseph Turner. But, as it was a duty which the defendants, as masters, owed to their employees, to exercise due diligence to make the scaffolding safe, Turner, in the performance of that duty, stood in the place of the masters. * * ■ * The situation is not.changed when the master intrusts the performance of a duty which he owes to the servant to some one else. In such case, he who performs the master’s duty stands in the master’s place, and his act is the act of the master.”
Upon the question of the plaintiff’s contributory negligence in not having observed the knot in the sleeper, I think, as I do upon the question of the defendant’s negligence, that it was for the jury, and the dismissal of the complaint being, in my opinion, erroneous, I dissent.
Van Brunt, P. J., concurred.
Judgment affirmed, with costs.