71 N.Y.S. 851 | N.Y. App. Div. | 1901
This action was commenced February 28, 1900, to recover for injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant. The plaintiff is a carpenter and a skilled car repairer, and had been at work in that capacity for the defendant prior to the accident for more than four years. The defendant operated a shop for the repair of cars, which was 300 feet by 150 feet, and about 30 feet in height. There were in the building three parallel repair tracks, the distance between each being thirteen feet. On each side of each track was a permanent scaffolding, suspended by rods from the roof of the building, reaching to within ten feet of the floor, Each track would hold seven cars, and the workmen stood upon this scaffolding while engaged in repairing the sides and roofs of the cars. If it was necessary to work upon the end of a car, a temporary staging was provided by laying planks across the stationary scaffolding at the end of the car on which the repairs were to be made. This method of doing the work had been carried on for twenty years, and, so far as appears, without injury to any employee. The planks for the temporary scaffold were obtained from a lumber shed opposite the car shop, and in which was kept an abundance of suitable planks for this purpose. The men who were doing the repairing got the planks when necessary and bridged the eleven feet of space between the permanent scaffolds.
On the morning of February 17, 1900, the plaintiff with three other men was engaged in repairing cars for the defendant. About
In view of the1 testimony that was uncontradicted, I think that the plaintiff did well in getting his case, in this aspect of it anyway to the jury.at all. It had been the unvarying practice of the men to get and place in position the planks whenever they were required . in carrying on the work. The master performed its duty by providing those suitable for the purpose. The plaintiff was a skilled workman, familiar with the manner of doing the work, and the men engaged with him were his co-employees,' and if a defective plank was taken when there were others appropriate for the work, the-oversight or carelessness was that of a fellow-workman, for which the defendant is not responsible. Placing the plank in position was a mere detail of the work, and the fact that plaintiff went upon it under the direction of the foreman does not charge the defendant with liability for the .injury inflicted upon the plaintiff by the plank breaking, even though it may have been unsound. (Kiffin v. Wendt, 39 App, Div. 229; Kimmer v. Weber, 151 N. Y. 417.)
The manner' of doing the- work on this occa'sion was precisely the same as had -been-in vogue in this shop for many years. There is no claim that the plank was placed any differently or that the staging it máde was less 'in width than was usual* and the only criticism is that it was not a sound plank.
The principal point urged by the appellant is that this temporary staging was not constructed in compliance with the requirements of the Labor Law (Laws of 1897, chap. 415, '§§ 18, 19). Section 18 of that act imposes the duty upon the master, and it is a power that cannot be delegated, to furnish and. erect suitable scaffolding for his men, and by section 19 it “ shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon.” What before this enactment had been construed to be a mere detail of the work, is now an absolute duty resting upon the master. (See McLaughlin v. Eidlitz, 50 App. Div. 518; Stewart v. Ferguson, 164 N. Y. 553.)
There has been no motion for a new trial in this case, and the only question for us to consider is the exceptions and ascertain if the plaintiff has an exception which raises the point now urged upon us. The court stated in his main charge that the plaintiff had no right to assume the scaffolding was safe, and this was excepted to, and certainly that does not raise the question. The next is the request relating to latent defects about which there was no proof, and the Labor Law was not then in the mind of the counsel, and the last exceptions pertain to the capacity in which Brown, the foreman, was acting at the time, whether a co-employee, also as to the effect of his direction to the plaintiff to go upon the staging. There is nothing in any of the requests containing a hint to the trial judge that the counsel was seeking to recover because-of the failure of the defendant to meet the conditions imposed upon it by the statute mentioned. The action was commenced and tried throughout without any intimation that any different liability attached to the defendant than would have been applicable had this statute never been enacted.
Upon the trial the controverted question of fact was whether the defendant had furnished suitable planks available to its workmen
The judgnmnt-should' be affirmed, with costs- to the respondent
All concurred.
Judgment affirmed, with'costs.