68 N.Y.S. 50 | N.Y. App. Div. | 1901
The plaintiff seeks to recover damages for injuries sustained in an accident happening upon the premises of the defendant, upon the ground that “ the said defendant, its agents and servants, carelessly, negligently and unlawfully made and erected an unsafe, defective and dangerous wooden structure or scaffolding upon which the plaintiff, as a carpenter hired and employed by the defendant, was directed by said defendant, its agents and servants, to mount and to do and perform thereon work, labor and services for the defendant.” The complaint further alleges that after mounting such scaffold “ said structure or scaffolding, by reason of such carelessness, negligence and unskillfulness of the defendant, its agents and servants, in erecting and making said structure and scaffolding, gave way and fell and caused the plaintiff to fall,”' etc. The learned trial court, at the close of plaintiff’s case, granted a motion for a nonsuit and refused the requests of the plaintiff to go to the jury upon various questions. Subsequently the court denied a motion for a new trial upon the minutes, and from the judgment and order entered appeal is made to this court.
The plaintiff asks for a reversal of the judgment and order on the ground that the court below has failed to recognize the distinction that exists in law between the cases where a workman who has been injured by the falling of a scaffold participated in its construction, or where, as in the case at bar, he was called by his employer to use the scaffold as a completed structure, he having no knowledge of how it was built or as to any defect or deficiency in the materials of which it was constructed. If the court, in a case where this distinction existed, failed to make a proper ápplication of the law, there could be no doubt of the right of the plaintiff to have a new trial, but a careful examination of the authorities called to our attention by plaintiff’s counsel does not justify the position taken. The evidence shows that the plaintiff, with several other carpenters and laborers, was at work upon the premises, and in the employ of
The case of McCone v. Gallagher (16 App. Div. 272) so fully ■discusses the authorities, and so concisely states the law of this case' ;at page 279, that it does not appear necessary to go over the ground .again; and even were the question before us, which is urged by the
The judgment and order appealed from should be affirmed, with costs.
Sewell, J., taking no part.
Judgment and order unanimously affirmed, with costs.