134 N.Y.S. 111 | N.Y. App. Div. | 1912
The plaintiff has framed his complaint upon a rather confused conception of the Employers’ Liability Act, and the case appears to have gone to the jury in harmony with the com
A ladder at common law is a simple appliance, which the servant uses with the same degree of responsibility that he handles a lever, a wheelbarrow or any other simple contrivance, and the only modification of this rule is to be found in the provisions of section 18 of the Labor Law, which provides that “ A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper
Of course, at common law there could be no recovery, for the master did not furnish the ladder and owed no duty to furnish a ladder, and the alleged direction of the so-called superintendent would be merely the negligence or the error in judgment of a fellow-servant. Under the Employers’ Liability Act it is necessary to show that the ways, works or machinery connected with or used in the business of the employer were defective, or that the accident was produced by “the negligence of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as super
There is no allegation in the complaint bringing the case within the language of the statute, in so far as it relates to the alleged negligence of the superintendent. The allegation of the complaint is not that the accident was due to the negligence of a “person in the service of the employer, entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, ” or that such superintendent being absent, it was through the negligence of “ any person acting as superintendent with the authority or consent of such employer.” It is merely alleged that “through the negligence of the defendant and its servants exercising superintendence or acting as superintendent ” the plaintiff was injured. There is no allegation that the alleged superintendent was “entrusted with” superintendence, or that this “sole or principal duty” was that of superintendence, and the evidence does not supply this defect. The case is, therefore, not within the act which is invoked to aid the plaintiff to recover, and it was error to submit the case to the jury.
This conclusion makes it unnecessary to consider the alleged error in the charge of the court.
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.
Judgment and order reverséd and new trial granted, costs to abide the event.