108 N.Y.S. 45 | N.Y. App. Div. | 1908
The deceased, an expert machinist, worked in the defendant’s machine 'shop. He put a ladder up against a shafting and went up to put a belt on a revolving pulley. He leaned his body over to the right away from the ladder, and with his extended right hand was trying to force the belt on the pulley, when the ladder tipped sidewise and threw him upon the shaft and to the floor, killing him. In place of moving the ladder over close to the pulley, the deceased leaned over so far that he tipped the ladder over. There was nothing to go to the jury and the motion to dismiss should have been granted. There was some evidence that the ladder was to some extent warped, so that it was not so exactly true that if you put. it up against a wall all four points would touch at once; but the accident did not happen from that. Moreover, the deceased had been in the habit of using the ladder and was as competent as any one else to say it was safe. The rule of employer's liability ¡.applicable to complicated and dangerous machinery does not apply to simple things like ladders (Marsh v. Chickering, 101 N. Y. 396; Cunningham v. Peirce, 112 App. Div. 65; Hart v. Villaqe of Clinton,
• There was some evidence about the fioor’of the.shop being to some extent greasy, but only as is necessarily the case in all machine shops;, and yet the learned'trial judge spoke of that to the jury, and apparently left, them to find'a- verdict for the plaintiff ’ on that ground; but the accident did not happen, from a greasy floor, nor is there any allegation in the complaint that it did, nor was there any proof that the floor was dangerous from grease.
The judgment should, be reversed.
Woodward, Jenks, Hooker and Miller, JJ., concurred. •
Judgment and order .reversed and new trial • granted, cpsts to abide the event.
