34 A.D. 515 | N.Y. App. Div. | 1898
The action was brought to recover damages for alleged negligence of the defendant which caused the death of the plaintiff’s intestate. The defendant was a contractor engaged in the construction of a. large building at Hunter’s Point, upon which the plaintiff’s, intestate was working as a bricklayer. The building had progressed until the bricklayers were at work upon.the wall between the sixth and seventh floors. A scaffold had been built at .that point upon which they were standing. While Stewart was engaged in his work there,, the scaffold gave way and he fell through five floors and was killed. The complaint was dismissed at the close of the plaintiff’s case, and . from the judgment entered upon that dismissal this appeal is taken. It cannot be disputed that- the jury would have been bound to find upon.,the evidence that the scaffold upon which Stewart stood at. the time of the accident Was improperly constructed, and that its fall was the direct result of that improper and unsafe construction. It is: claimed, by the defendant that the construction of" the scaffold was a detail of the work, for the performance of which lié had furnished sufficient proper material, and -that it had been intrusted . to: men who were competent for that, purpose." He insists that these- men.-were co-servants of Stewart, engaged upon the samé work, and if" they failed either to use proper material which had been furnished, or to put it together in the proper way, so that the
It appears that one Montague was the superintendent of the defendant in charge of the construction of the building, and had the control and management of it. It became necessary on a certain day to build this scaffold for the use of the bricklayers and "three men were set to work upon it. At the place where the •scaffold subsequently fell, it was supported by two uprights, one placed upon the other. From the upper one to the wall was placed what was called a putlock, nailed to the upright at one end, and at "the other end inserted in the wall. To make the scaffold safe it was necessary that the upright which supported the inner end of the putlock should be strongly braced.. It appeared from the testimony that three men were at work upon the scaffold in this place; that the upright had been erected and the putlock nailed to it and inserted in. the wall, but no braces had been placed to steady the upright. At that stage of the work the superintendent called away two of the men who were at work, leaving a single man, who was then at work upon the floor of the scaffold! It does not appear whether this person was a skilled .scaffold builder or not. It does ■appear, however, that the scaffold was completed shortly after the. men were taken away from the work, and the bricklayers were set to work upon it the next morning. Ho braces were put upon the upright, but it was permitted to remain in the condition in which it was left at the time the superintendent took the two men from the work. The plaintiff insists that this case is not within the rule laid ■down in the ease of McCone v. Gallagher. In that case the scaffold was used by carpenters who were at work upon the inside of a building. It was the duty of the carpenters to erect the necessary scaffolding, and the defendant, who was the contractor, had supplied a ;sufficiency of proper material to be used for that purpose. The material selected by the carpenters, however, was not proper, and
The" case of McCone v. Gallagher was decided in April, 1891. The accident which is the subject of "this litigation occurred on the* 23d of November,-1891. On the thirteenth of Maiy in that, yeah
■ It is said, however,, that the manner of the erection of-the scaffold was easily seen and that the plaintiff’s- intestate was guilty of con- ■ tributory negligence in consenting to use it when it was riot sufficiently braced. But.it clearly cannot be said as a matter of law that Stewart was guilty of contributory negligence in that regard. There was nothing to show that' he had any knowledge of, or means of knowing, the manrier-in which this particular upright was secured. The upright was below the place where he was at work,, and it was ve.ry clear that, standing .there, he was unable to see it, and.-there is nothing- to show, that his attention was called to it or that he had -.either reason or opportunity to observe-it. He was not called upon to inspect the scaffold to ascertain whether it was safe, but.he had a right to assume that the master had performed his duty in that regard. He was, therefore, clearly not guilty of contributory neg
But that only takes jilace where the violation of the law can be said to have been in some way or to some extent the cause of the injury. The mere fact that a person has violated a law is not sufficient to charge him with liability for an accident unless the. violation of the statute has something to do with the occurrence of the accident. It is quite ti;ue that in this case the law was violated and that Stewart was killed, but the killing of Stewart resulted purely from the breaking of the scaffold. The failure to fill in the floors under the place where he was at work had nothing whatever to do with the thing that caused his death. The fact that the floors were open was a condition which existed at the time and place where the
But for the reasons given above we are of the opinion- that the judge erred in dismissing the complaint . and that this judgment should be reversed, and that there should be a new trial, with costs to the appellant tó abide the event.
i ' .
Barrett, Patterson aiid O’Brien, JJ., concurred.'
Judgment reversed, new trial ordered, costs to appellant to abide event.'
Sic.