137 N.Y.S. 264 | N.Y. App. Div. | 1912
Defendant’s servant stepped on a plank on a trestle. The plank tipped or slipped and the decedent fell upon a brace below, where the short remnant of a stringer, falling, hit him. So the jury has found. That the plank slipped, that decedent fell and that the timber hit him, one Nelson, his fellow-servant, alone testifies. That he fell through a misstep and grasping the short timber carried it away so that it fell upon him, Williamson, foreman at the time, alone testifies. Each man states that he was looking at him at the instant. Nelson, a foreigner, is less clear in his general evidence, but Williamson’s credibility is impaired by evidence of decedent’s brother that Williamson told him what would indicate that he did not see the man when he fell. That the plank itself did not fall is probable, but the question as submitted to the jury was whether the plank canted or tipped and let him fall. It cannot be said that the finding is against the weight of the evidence. But the court charged that the case fell under the Labor Law and that the trestle was a structure and the planking a scaffold. (See Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18.) The question discussed is whether the place where the man fell was a scaffold. The trestle was in the course of construction, and its intended use was for a temporary tramway for dirt cars connected with building a tunnel. It was to consist of a series of braced bents on which were longitudinal girders. The bents were in place with certain bracing, some of the stringers were in place, one was on the bents, but not carried forward to its position, and others were below waiting to be raised and placed. Each bent consisted of two vertical posts erected on the floor of a pier with a crosspiece or cap fastened at the top. They were braced, and the stringers, in length, from twenty-four to thirty-six feet, ran on each side, as stated. While doing the work on the bents, it was necessary to have temporary planks to space the bents, which were eight feet apart. The planks
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Rich, J., concurred; Jenks, P. J., and Burr, J., concurred in result; Woodward, J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.