45 N.Y.S. 234 | N.Y. App. Div. | 1897
The rules of law applicable to cases of this character have been settled by late adjudications' of the Court of Appeals and of this court, and we have to meet only the difficulty of applying such rules to the particular facts of this case. That the obligation rests upon a master to exercise care in the selection of a safe place in which his enrployees are to do their work, together with proper and safe implements with which to work, is recognized and has been applied in many cases in this State. The duty to furnish proper and safe implements and apj>liances exists wherever from the nature of the work to he done, or from the position that is required to be taken by the employee in doing the work, it is necessary that such appliances should he furnished to the employee before he can do the work or perform the services which he is employed to do or perform. A distinction has, however, been made, so that where it appeared that as a part of or an incident to the work which the employee was to do, such employee is required to erect a scaffold or other appliance necessary to do the work, neglect in the erection of such scaffold was not a neglect to perform a duty that the employer owed to his employee. We have had occasion lately in the case of MoCone v. Gallagher (16 App. Div. 212) to call attention to this principle established by the later decisions of this State, and it is not necessary to repeat what was there said. It is settled, however, that where a person is employed to do a piece of work, and as an incident to the doing of that work has to construct a scaffold, while the negligent construction of. that scaffold is not a violation of any duty that the master owes to his employees, there is still an obligation upon the master, the neglect of which renders him liable to any one sustaining damages in consequence thereof, and that is the obligation to furnish suitable materials for the construction of a scaffold. The rule is thus stated in one of the late cases in the Court of Appeals (Kimmer v. Weber, 151 N. Y. 422): “ 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 the proximate result of
In this case it became the duty of this plaintiff with a fellow-servant to work upon the inside of an elevator shaft upon a building being erected by thé defendant. To do such work a platform or scaffold of some kind was necessary. The plaintiff, in connection with a fellow-workman, looked for some plank with which to build that scaffold or platform. There was no plank found upon the premises, the defendant having failed to furnish any that were of sufficient length or proper to be used for such purpose. The plaintiff then reported to the foreman, to whom he had been directed to report when employed, that there were no plank long enough to reach across that ■ well hole and asked him what they should do. The foreman saw what is described as a “ jack” in the well- hole, which was a platform that had been used by the men in erecting the elevator. He- directed the plaintiff and his associate to get down and pull that up, referring to this jack. The jack having-been pulled up, the foreman directed that it be fastened in its. position, and then asked the plaintiff to get some short plank with a . piece of rope. These having been procured, the foreman directed the plaintiff’s associate to fasten this short plank with the rope to the jack, and this having been done, the. foreman jumped ’down upon the scaffold thus constructed under his direction and said, “ That, makes a good scaffold and Will hold a house; now, go ahead and I will see what the other fellows are doing,” and with that he -left them. The plaintiff and his associate following this .direction, went upon this scaffold and started to do their work- when the jack gave way. .They were thrown down to the bottom of the shaft, and the plaintiff sustained the injuries to recover for which this
The evidence of the constructor of the elevator was that this jack was perfectly safe for the use for Avhich it was constructed, but that it was not adapted for the Avork that the plaintiff Avas required to do, if they Avere required to Avork out to the end of the jack, because in that' case the weight Avould come upon the cleats, and they were not of sufficient strength to bear it. The Avitness used this jack both before and after the accident, simply repairing the broken cleats, but uséd it in such a way that the weight Avould come not upon the cleats but upon the rope that held the jack in its place. It is apparent that to do the work that the plaintiff Avas required to do it was necessary that he should stand out upon the edge of this jack so that the Aveight would come upon the cleats. This is Avhat he'
How,, upon the facts, before stated, it is quite apparent that the master failed in his duty to furnish ..suitable materials for the construction of this scaffold or platform. There were no planks furnished that were of sufficient- length to construct a platform, and that fact was reported to the foreman in charge of the work. The' foreman then undertook tó supply the materials for the making of this scaffold by directing the use of this jack which had been furnished by another contractor for an entirely different purpose. He superintended the lashing of the plank to the jack which would enable the plaintiff and his associate to stand in the inside of the elevator shaft in a position necessary to enable them to do the work,' and he instructed them to use this platform so constructed, for the
How-, applying this. principle, it'seems to'me quite clear that Mohl was acting for the master in the performance of the duty that the master owed to the workman employed upon this particular-piece of work: He was in charge of the work, and it was to him that the plaintiff was directed to .apply for instructions when he was employed. It was-to hiin that., the plaintiff reported the fact that ■ there were no materials furnished by the master for the construction of this platform or scaffold; and he it was who then undertook to furnish to the workmen materials to be used for the construction óf such scaffold. As. before stated, this was the master’s duty, the - performance of which was undertaken by Mohl, his foreman .and representative. In the discharge of that duty he furnished this
The question as to the contributory negligence of the defendant, or, in other words, whether it was a negligent act of the defendant to use this jack for tins purpose, under all the circumstances, was, I think, clearly a question for the jury. The plaintiff was not a constructor of scaffolds, assumed to be familiar or to have the same familiarity as the master, with the requirements of the materials necessary to construct a proper platform or scaffold. He was employed and required to work in this well hole, which certainly was a place of danger, unless the scaffold used or provided for use was strong and safe. It is perfectly apparent that he had no discretion as to the choice of materials from which to construct the scaffold. The only material that could be used for that purpose, or that was furnished by the master, was the jack which the master, through his representative, had furnished and directed-the servant to use; and it certainly was at least a question for the jury to say whether or not the defects in this jack were so apparent to the plaintiff as to make it improper for him to .use it, or whether it was such an improper scaffold when constructed that it was contributory negligence for plaintiff to use it.
It seems- to me, therefore, that both as to the question of the negligence of the defendant and the contributory negligence of the plaintiff, the question was one' for the jury, and the judgment
O’Brien and Parker, JJ., concurred.; Rumsey and Williams,' JJ., dissented.
Judgment reversed, new trial, ordered, costs to appellant to abide •event.