Inkpen v. Safeway Steel Scaffolds Supply Corp. ( 1950 )

In a negligence action wherein plaintiff has recovered damages on the verdict of a jury, the defendant appeals from the judgment. Judgment reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. The jury could find that the defendant designed the scaffold and sold the parts to build it according to the design. But plaintiff failed to establish that defendant was negligent in designing the scaffold which toppled over. Plaintiff cannot, as was properly charged, rely on any warranty. It was uncontradicted that a scaffold designed by defendant in the same fashion was employed by plaintiff’s employer more than five hundred times to do similar work, in the same manner, without going over, and that the one on which plaintiff was employed had been used six or seven times before plaintiff was injured. In any event, a new trial would be granted because in our opinion the verdict is against the weight of the evidence. Carswell, Wenzel and MacCrate, JJ., concur; Nolan, P. J., and Sneed, J., concur for reversal of the judgment but dissent as to dismissal of the complaint and vote to grant a new trial on the ground that the verdict is against the weight of the evidence.