102 A.D. 477 | N.Y. App. Div. | 1905
The plaintiff is a carpenter. He was engaged by the defendant in putting in certain temporary arches between the iron girders in a power house in course of construction for the purpose of affording a foundation for the concrete filling between such girders. He had been at work for some days upon this line of work, and it appears that he had been in the habit of picking up such pieces of planking as he found about the building and using them across the iron girders to form a platform for himself in placing these temporary arches. The accident complained of occurred early in the morning, soon after the men had commenced work. A number of different contractors were engaged upon the building, and the plaintiff, according to his version, was preparing his platform to resume work where he had left off on the previous working day. He does not explain
The facts, which are not disputed, are that the concreters who were employed by the defendant, had placed planks fourteen to sixteen feet in length across the iron girders upon the first floor above the ground, and had covered a space eighteen to twenty feet in width, not for the purpose of working upon the same in the construction of the building, but to store the materials used in compounding the concrete, and incidentally for the purposes of a mixing board or platform. It was not designed for the use of the carpenters, and if the question were an open one I should hesitate to hold that this mere temporary flooring constituted a scaffolding within the meaning of the Labor Law, but since our decision in the case of Welk v. Jackson Architectural Works (98 App. Div. 247) there would seem to be no doubt of the character of this structure, and if the defendant owed the duty of constructing a safe scaffolding for the use of the plaintiff and his fellow-employees, it is difficult to understand how the judgment in this case can be supported. It may be plausibly argued that as this platform was not for the use of the carpenters, and was not necessary for any of the purposes for which the plaintiff was employed, that the case does not come within the letter of the statute, which relates to the furnishing or erecting of scaffoldings “for the performance of such labor” as the party may have been employed 'or directed to perform. (Labor Law [Laws of 1897, chap. 415], § 18.) But we are disposed to think that the purpose of the Legislature was to impose the duty of constructing
The exceptions should be sustained, and a new trial granted.
Hirschberg, P. J., Bartlett and Hiller, JJ., concurred; Hooker, J., not voting. .
Plaintiff’s exceptions sustained and new trial granted, with costs to abide the event.