116 N.E. 981 | NY | 1917
Lead Opinion
The action is brought by the plaintiff to recover damages for personal injuries, occasioned, as he charges, by the negligence of the defendant.
The plaintiff was a plasterer employed by the defendant in the construction of a building. The plasterers had finished with one of the rooms in the building, and at the time of the accident the plaintiff with his son, who is also a plasterer, was engaged in filling up the holes left in the walls for the plumbers and electricians to do their work. Some of the holes were near the ceiling of the room, and to reach them it was necessary to have a scaffold, platform or other similar structure for the plasterers to stand *239
upon. Accordingly, the defendant's foreman furnished and placed in position two wooden horses about three and one-half feet high with two planks laid thereon. We must assume that the plaintiff took no part in placing the horses and planks. The plaintiff and his son got upon the structure thus provided and went to work. The son finished work first and he jumped to the floor. In doing so, he in some way overthrew the scaffold and the plaintiff fell, striking his shoulder and so received injuries for which he has recovered in this action. The accident happened June 12, 1912, and the action was brought under section
The defendant, the appellant, argues that the structure which fell was not a scaffold within the meaning of section
The plaintiff argues not only that the case is within the Labor Law, but also that the judgment can be sustained under the Employers' Liability Act which requires a safe place to work, or under the common-law liability of the defendant. Whether it can or not, in the view I take of the case is unimportant, because I have reached the conclusion that the structure was a scaffold.
The defendant in support of the argument that the structure was not a scaffold, cites Williams v. First National Bank ofUtica (
Schapp v. Bloomer (supra) was a case where the plaintiff was hanging certain shafting from the ceiling of a factory building, and he stood upon planks resting partly on wooden horses and partly on large rolls of paper. This structure fell to the floor and the plaintiff was injured. There is some language in the opinion of the court which supports the plaintiff's theory in the case under consideration; but the main thing decided was that the statute imposes liability only when the work is to be done "in the erection, repairing, altering or painting of a house, building or structure." It was held that the statute limits the scaffolds, for a defect in which the master is liable, to those constructed "in the erection, repairing, altering or painting of a house, building or structure," and it was further held that the work of attaching shafting in the factory was not within the limitation of the statute.
I do not think the case falls within the principle of either of these decisions, but rather is controlled by the decision of this court in Caddy v. Interborough Rapid Transit Co. (
Judge WERNER in his opinion in the Caddy case cites many Appellate Division decisions which have given the language of the statute the broad interpretation contended for here, and go far to sustain the judgment appealed from. Counsel for the appellant contends that the height of the structure above the floor, which was only three feet and six inches, indicates that it was not a scaffold within the meaning of the statute. Clearly, the height of the structure, while perhaps an important thing to consider, does not finally define its character. In Holsapple v.International Paper Co. (
The defendant makes no argument, except that the structure was not a scaffold, and it is not necessary to consider any other question. There was evidence from which the jury could have found that the wooden horses which supported the planks, on which the plaintiff stood, were unsafe.
I recommend that the judgment appealed from be affirmed, with costs.
Concurrence Opinion
The appellant relies chiefly upon Schapp v. Bloomer
(
I, therefore, concur, on the authority of the latter cases, in the opinion of Judge CUDDEBACK that the judgment should be affirmed.
CHASE, COLLIN, CARDOZO, CRANE and ANDREWS, JJ., concur with CUDDEBACK, J.; McLAUGHLIN, J., reads concurring memorandum.
Judgment affirmed.