54 N.Y.S. 615 | 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 plain
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 he 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 same 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 scaffold was safe to stand upon, their failure was the negligence of a co-employé of Stewart, for which the defendant was not responsible. He invokes the rule laid down by the court of appeals in Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017, and by this court in the case of McCone v. Gallagher, 16 App. Div. 272, 44 N. Y. Supp. 697. The learned court at the trial term held that the facts proved brought the case within that of McCone v. Gallagher, supra, and, applying the rule laid down in that case, dismissed the complaint. 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. Prom 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. No 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 case 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 scaffold was on that account defective. The defendant, however, took no part in the con
The case of McCone v. Gallagher was decided in April, 1897. The accident which is the subject of this litigation occurred on the 23d of November, 1897. On the 13th of May in that year the legislature passed the “Labor Law,” so called, which is chapter 415 of the Laws of 1897. That law took effect on the 1st day of June. At the time that law was passed the rule laid down in Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017, was thoroughly settled as the law of this state, fixing the liability of a master towards his employés in the construction of scaffolding upon which it was necessary for the employés to stand to do their work. That rule was that a scaffold erected for workmen is not a place in which their work is to be done, within the meaning of the rule requiring the master to furnish a suitable place in which to do his work, but it is an appliance or instrumentality by means of which the work is to be done, and that, if the master furnished proper material with which to build the scaffold, he was not liable for the negligent act of one of his employés in building it, but that, if any employé at work upon it received an injury because of the defect in it, it was the negligence of a fellow servant, for which the master was not liable. That rule had been laid down
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 contributory negligence in consenting to use it when it was not 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 manner in which this particular upright was secured.
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 to abide the event. All concur.