Schneider v. American Bridge Co. ( 1908 )

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. The first error assigned is on the refusal of the court to grant leave to amend the declaration. The avowed object of the proposed amendments was to bring the case under the operation of two statutes of the State of New York relating to the liability of employers to employees. The first of these is the act of 1897, chap. 415, the 18th section of which declares that a person employing another in erecting a house shall not furnish, or erect, or cause to be erected, for the performance of such labor, scaffolding, hoists, stays, ladders, or other mechanical appliances which are unsafe, unsuitable, improper, and which are not so constructed and operated as to give proper protection to the life and limb of the person so employed. The second is the act of July 1, 1902, chap. 600. This provides that, if personal injury is caused to an employee by reason of any defect in the construction of the ways, works, or machinery connected with or used in the employee’s business which arose from, or had not been discovered or remedied owing to, the negligence of the employer, or any person in his service and intrusted by him with the duty of seeing that the same were in proper condition; or by reason of the negligence of any person in the service of the employer, intrusted with or exercising superintendence, or of any person acting as such superintendent with the authority or consent of the employer, — the employee injured thereby, or his representatives in case of death, shall have the same right of compensation and remedies against the employer as if the employee had not been an employee, or not in the service of the employer, or engaged in the work. Section 2 provides that no action shall be maintained under this act, unless notice of the time, place, and cause of injury is given to the «employer within one hundred and twenty days, and the action is commenced within one year, after the occurrence of the accident causing injury or death.

The grant or refusal of leave to amend is a matter within the discretion of the trial court. Schrot v. Schoenfeld, 23 App. D. C. 421, 426; Chunn v. City & Suburban R. Co. 23 App. D. C. 551, 562. We perceive no abuse of that discretion in this instance. The case had been at-issue since February 25, 1907, and no reason appeared why the plaintiff waited until the trial had begun to ask for leave to amend in respect of a matter which was presumably within his knowledge when the action was begun. Moreover, as far as the operation of the first statute extends, there was no reason why he should amend in order to avail himself of it. That it was considered is shown by the charge of the court as it appears in the record. The defendant sustained no injury through the refusal of the amendment setting up the later statute. Its benefit is limited not only to those who give the required notice, but those also who commence their actions within one year from the date of the injury. That time had elapsed before leave to amend was asked.

2. The question raised on the exception taken on the action of the court in directing a verdict for the defendant cannot be determined on the application of the New York statute of 1897, before mentioned. The court rightly held that it could not apply because there was no evidence whatever tending to show that the injury was occasioned by any defect in the scaffolding erected for the performance of plaintiff’s labor, or in any hoist, stay, ladder, or other mechanical contrivance used therein.

3. Tested by the principles of the common law, the evidence was insufficient to show actionable negligence committed by the defendant. An immense building was in course of construction. Plaintiff’s special work was at the extreme end of the same, riveting connections with the outer girder. His place of work was upon a scaffold where he appears to have been reasonably safe under the ordinary conditions of his particular labor. It does not appear from the evidence that he or his immediate colaborers were required or expected to walk over the iron framework in order to reach the scaffold provided for them, or to procure tools for the performance of their labor, or that the defendant undertook to lay boards across the beams for the purpose of enabling any of its employees to walk about over the iron framework. How the board came to be lying on the beams, or by whom, or for what purpose, it was laid there, does not appear. Por aught that appears, the boards mentioned in the evidence may have been brought and laid by some of the workmen engaged in the building, for their own convenience and of their own motion, or may have been surplus boards left over from the scaffold construction. “The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not impose upon him the duty, as towards them, of keeping a building which they are employed in erecting in a safe condition at every moment of their work, so far as its safety depends upon the due performance of that work by them and their fellows.” Armour v. Hahn, 111 U. S. 318, 318, 28 L. ed. 440, 441, 4 Sup. Ct. Rep. 433.

Again, there was no evidence to show that the board, if laid across the beam, by the master’s authority, for workmen to stand or walk upon at their convenience, was in such a defective condition as that the master ought to be charged with negligence in not observing it. Looney v. Metropolitan R. Co. 200 U. S. 480, 486, 50 L. ed. 564, 568, 26 Sup. Ct. Rep. 303. It was said in that case: “To hold, a master responsible, a servant must show that the appliances and instrumentalities furnished were defective. A defect cannot be inferred from the mere fact of injury. There must be some substantive proof of the negligence. Knowledge of the defect or some omission of duty in regard to it must be shown.”

There being no evidence on, which a verdict for the plaintiff could rest, the court was right in directing the jury to find for the defendant. The judgment must therefore be affirmed, with costs. Affirmed.

A writ of error to the Supreme Court of the United States was allowed June 2, 1908.