87 N.Y.S. 261 | N.Y. App. Div. | 1904
Lead Opinion
The action is to recovey the damages sustained by reason of the collapse of a scaffold built by the plaintiff and a fellow-workman and used to install machinery in a factory which was being fitted up "by the defendants. Upon the former trial the complaint was dismissed Upon the plaintiff’s case which, upon an appeal to this court, was reversed (76 App. Div. 34). Upon the new trial the question •of the defendants’ negligence was submitted to the jury, who found a verdict for. the plaintiff, and from the judgment thereon entered and from the order denying the motion for a new trial the •defendants appeal.'
Upon the former appeal the principal question discussed in' the prevailing opinion was whether section 18 of the Labor Law- (Laws of 1897, chap. 415) applied to a scaffold such as that erected by the plaintiff. It was there said: “ The main question presented by this appeal, therefore, is, did the changes which were being prosecuted in the defendants’ factory constitute, the same an alteration within the meaning of the Labor Law ? * * * It is certainly no greater stretch of construction to hold that placing machinery within a room, in a building, and attaching the same firmly to the ceiling, constitutes an alteration of such room, than to hold that - a ship upon the ways is a structure within the meaning of the statute. * * * It is not possible to say that when this room, bare as it stood* had appliances firmly fastened to its ceiling for the purpose of supporting ■ heavy shafting, it was not altered.. It was being transformed from a bare room into a place for the manufacture of pianos; and it -was in a literal sense altered to meet the requirements of the business expected to be carried on. * * * But where the alteration is of such a character as requires the use of scaffolding to effect it, then such case is fairly brought within the terms of the statute, as. it constitutes the use of a structure in the alteration, for which the act provides; and the necessity immediately arises for the protection of life and limb, which is the primary purpose to be accomplished.We think, therefore, that the Labor Law applies to this case, and
In determining the question presented upon this appeal we are, therefore, to assume that section 18 of the Labor Law applied to such a scaffold as was here used. Assuming, therefore, that this provision of the Labor Law applies, we are now to determine whether the facts proved upon this trial are sufficient to justify the jury in finding that these defendants were guilty of a failure to perform the duty imposed upon them by this statute. Section ! 8 of the Labor Law provides that “ a person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure, shall not furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical' contrivances which are unsafe, unsuitable or improper and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” And the first question presented is whether these defendants did. “ furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.”
The plaintiff, testifying on his own behalf, explained the circumstances under which this scaffolding was constructed. The accident happened January 9,. 1899. The plaintiff had been employed by the defendants in their factory from 1891 to 1899, originally as a porter. He subsequently operated a machine and worked as a joiner and planed off boards. At the time of the accident the defendants were engaged in moving their • factory from One Hundred and Twenty-fifth street to One Hundred and Thirty-second street. About a week before the accident the plaintiff was directed to go up. to the new factory at One Hundred and Thirty-second street to place there the machinery necessary for use in their business. While at work in the new factory he, with the other workman, was under
-Upon cross-examination the plaintiff testified that he had worked, at planing and joining w°°d for about five years before the accident, operating machines in which steam power was used; that the wood that was used in the construction of this scaffold had been brought by the defendants from their old factory, and the shafting that was put up was shafting that had been used in the old factory; that Tempe and the plaintiff built the scaffold and themselves adopted the method and the materials that were used; that there was plenty of lumber in t'he room from which the plaintiff selected what he used* and the only directions that were given to the plaintiff and Tempe by either the foreman or the machinists was that the plaintiff and Tempe should build the scaffold; that there was no direction from either the foreman of from any one else' as to how the scaffold should be built; that was left to the plaintiff and Tempe; that they were simply directed by Piekert to build the scaffold and to take the lumber for that purpose from the next room; that “ I only know that he told us that we should build the scaffold, and that we should take wood from inside ; that is what I know. Inside was the third room I have spoken of,” and that after having received this instruction the plaintiff said : “ How, we have to build a scaffold,” to which Tempel acceded.
The plaintiff also called one of the machinists engaged in installing this machinery, who was not in the employ of the ■ defendants, and who testified that he observed the pile of lumber from which the timbers were taken for the construction of this scaffold and that there was plenty of lumber there from which to build the scaffold ; that he noticed the scaffold after it was built and that it looked all right to him. Other witnesses called by the plaintiff also testified that there was plenty of lumber upon the premises to build the scaffold, of all kinds of length, width and thickness, and that there was
After the collapse of the scaffold, it was ascertained that one of the pieces of timber used to brace it had a large knot in it; that this piece of timber was broken across the knot, and that the nails used to hold the scaffold and bracings together had been pulled out. Pickert, who has been described as the foreman, testified that the installation of this machinery was under the direction of the machinists, who were not in the employ of the defendants; that he did not at any time tell the plaintiff to build the scaffold; that he gave no instructions as to how the scaffold should be built; that he did not know" who built it and did not see it built; that there was a quantity of lumber, much more than was used to build the scaffold or necessary for that purpose, on the premises ; that just before the accident he was in the building, when one of the machinists came and asked for two men to help . lift the shafting; that the Avitness went down into the basement and instructed two men working there to go up and help; that one of them went with the witness to the scaffold; that when he arrived there the plaintiff and two other men were working out on the scaffold, and he went up to assist them ; that none of the men asked him whether the scaffold was strong enough, and that he did not tell any one that it was; that neither of the defendants, nor any one acting for them, gave any directions as to how this machinery was to be installed; that the
The machinist, who had made the contract with the defendants to install this machinery, testified that he made a verbal agreement with the defendants in regard to moving and placing some machinery for them; that. the understanding was that he was to move the machinery from the old factory into the new one; that he was to furnish two good men and the material that was needed ; that he was to do what the defendants’ foreman proposed to do so as to get it running in proper shape, so that he was to set up the machinery in the new factory; that the defendants’ men were working along with his men; that he had to set the shafting where the defendants wanted it, and that he was to do as defendants’ foreman directed him to do; that nothing was said about the building of the scaffold for the purpose of putting up any shaftings; that the witness sent two machinists to do the work; that the defendants or their foreman had directed where the machinery was to be placed, and the machinists employed by the witness decided as to the way in which it should be set up ; that in setting up machinery of that kind scaffolding was ordinarily used ; that the machinists employed by the witness to work upon this job were old experienced millwrights and had built scaffolds while in the witness’ employ, which had been four or five years before the accident; that it was part of the machinists’ work to build scaffolds when necessary in putting up machinery.
The defendant moved to dismiss the complaint, which was denied.
Assuming that this provision of section IS of the Labor Law to which attention has been called was. applicable, the question first presented is, whether or not it was the duty of the defendants to
It follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellants to abide the event. ,
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Van Brunt, P. J., and McLaughlin, J., concurred; O’Brien and Hatch, JJ., dissented.
Dissenting Opinion
(dissenting):
I dissent. ' It is assumed- that by force of our prior decision the defendants would be-liable if they erected or caused to be erected
This seems to me to be immaterial because it was not shown that plaintiff knew or had reason to know of any such contract with the machinists, and the fact that Pickert directed plaintiff to assist in the erection of the scaffold and told him where he could get the lumber, negatives the inference that he was a mere volunteer or gratuitous helper in something which did not relate to his employment.
It would be a novel proposition if a servant directed to do a particular thing should instead of obeying the master inquire if it was not some one else’s duty to do it. What difference legally can it make whether somebody else did or did not agree with the master to do it, if the latter directs his employees to do it. Hor am I impressed with the evidence in support of such a defense. It. would appear to have been an afterthought, or such the jury might have concluded, because on its face it is incredible that one who employed an independent contractor to do the work should, at his own cost, furnish the labor and material necessary for the construction of the scaffold.
In my opinion the most serious question is whether under the law an employer is liable for injuries suffered by an employee on a scaffold which the employee himself builds, the master having furnished a sufficiency of the material from which it could be safely built. This question, I think, must in part turn upon a consideration of whether or not the employee did or did not know how to build a safe scaffold.
Here the plaintiff was not a scaffold builder and the evidence tends to show that even if sound timber had been used it would not have averted the accident for the reason that it was not sufficiently braced to hold the weight that was placed upon it. It is said by Justice Ingraham: that “ so far as appears neither the defendants
Here again I think Justice Ihgraham begs the question, his whole discussion proceeding iipon a theory which might well apply if this were a question between the contracting machinist and the defendants, As between them it may be true that “ defendants did not undertake to provide scaffolds for use in installing this machinery.”
But how can all this affect the liability of the plaintiff Í The latter, without knowledge of the relations between the defendants and the machinist, was told to work on a scaffold by defendants, and this scaffold was unsafe and insecure, and he was injured. Under the law this made them liable, unless the fact to which we have adverted, that the plaintiff had a part in the selection of the lumber and in- the labor that was expended in erecting the scaffold, would change the rule. Section 18 of the Labor Law provides that “a person employing * * * another to perform labor * * * shall not furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding * * * which are unsafe, unsuitable or improper and which are not so constructed, placed and operated as to give proper protection to the * * * person so employed or engaged.” This imposes an obligation which cannot be delegated, and I do not think that the responsibility which is thus placed on the master by the law is discharged by having a scaffold built by incompetent men, though in his employ, and then, when one of them is injured while working on what is shown to have been an improperly constructed scaffold, that the master can escape because the man injured was one whom the master directed to construct the scaffold. If the master causes the erection of an “ unsafe, unsuitable or improper ” scaffold, and directs Ms employees to use it, he is liable if one of them is injured by reason of the defective construction.
I am for affirmance.
Hatch, J., concurred.
Judgment and order reversed and new trial ordered, costs to appellants to abide event.