Ryan v. Miller, 12 Daly 77

Ryan v. Miller

12 Daly 77 | New York Court of Common Pleas | 1883

Vatt Brunt, J.

[After stating the facts as above.]— The appellant claims that the damages are too remote, and *79cites various cases in support of this proposition; but I fail to see the application of aiw one of those cases. If the defendant’s servants were guilty of negligence in the construction of this ladder, that negligence was the immediate cause of the - accident which happened to the plaintiff, and it was not the person falling who can he said to be the only immediate cause of the injury.

As well might it be said that if A, in assaulting B, strikes him and knocks him with such force that B knocks C down and he is injured by the fall, then A is not responsible for the accident, as to say that where the defendant in this action by his negligence causes one of his workmen to fall upon another, the injury received by the second workman is not the natural and probable consequence of the defendant’s wrongful act or omission.

The next point raised by the appellant is, that negligence was not brought home to the defendant, and that the negligence, if any existed, was the negligence of the foreman in carelessly putting on this fifteenth round, and that the foreman was a fellow-workman engaged iir the same common enterprise.

In this proposition the principle is overlooked that an employer is bound to furnish proper materials and proper instruments with which his employees are to do the work. In this case the defendant furnished the ladder, and, if the plaintiff’s theory of the cause was true, the ladder was improperly constructed; and it is immaterial by whom it was so improperly constructed, as long as it was furnished by and with the direction of the defendant for the purposes of use by his employees. The counsel cites various cases in which the proposition is maintained that the employer is not a guarantor of the safety of the implements furnished, and that in cases where the defect could not have been discovered by inspection no recovery could be had, which are not applicable to the case at bar, as it is not claimed that an examination of this ladder would not have disclosed the fact that there was but one nail in the round which came off, and that it was in a position in which it had no hold. *80The workman in going up the ladder was not required to examine every round to see whether it was suited for the purposes for which the ladder was constructed, but he had a right to assume, unless the defect was glaringly apparent, that the ladder was fit for the purpose to which it was to be applied.

It was also urged that as the servant assumes all risk incident to his employment there can be no recovery in this case. It does not appear from the evidence in this case that one of the incidents of going up a ladder is that the ladder must necessarily be so defectively constructed that the workmen are liable to fall from it in consequence of the breaking or coming off of the rounds.

The claim' that the plaintiff was guilty of contributory negligence in standing in the position in which he was standing, does not seem to be upheld by any evidence in the cause. He was there awaiting his turn to go up the ladder, and it certainly could not be considered as part of his duty to be watching the other men going up the ladder to see how many fell down before it was his turn to ascend.

The only exception which appears to be of any moment in the case, is the refusal of the court to charge the request contained in the 133d folio of the case, which was to the effect, “ That if the jury are satisfied that the round which broke and caused the accident was not put on the ladder by the defendant or his foreman, the plaintiff cannot recover.”

The request in question, as framed, omits an essential element.

There had been a controversy as to whether the round which came off was the top round, or the third round from the top. In case the jury should find that it was the third round from the top, there was no question upon the evidence but that it was put on by the foreman. In case the jury found that the round which came off was the top round, then there was a question for the jury to determine whether or not it was put on by the foreman. In the request submitted to the court this fact was entirely ignored, and it authorized the jury to say, even if they should find *81that the third round came off and was the cause of the accident, that it was not put on by the foreman, which was entirely contrary to the evidence. If, in the proposition, it had been left to the jury to find whether it was the top round which had come off, and then, if they found that such top round was not put on the ladder by the defendant or his foreman, that the plaintiff could not recover, the request would have been proper; but leaving the question so that the jury could have found that it was the third round which came off, and that such third round was not put on by the defendant or his foreman, made the request in question improper, and the refusal to charge in the language employed was not error.

The case of Derkin v. Sharp (88 N. Y. 228), illustrates the precision which must be followed in a request in order to constitute error in refusing to charge the same.

There are other exceptions which do not seem to call for particular discussion; and the judgment and order appealed from must be affirmed with costs.

Chables P. Daly, Ch. J., and J. F. Daly, J., concurred.

Judgment and order affirmed, with costs.