Williams v. First National Bank of Utica , 102 N.Y.S. 1031 ( 1907 )

Williams, J.:

The' judgment and order should be reversed and a new trial granted, with costs to appellant to abide event!

The action was. to recover damages for injuries to the plaintiff, alleged to have resulted from defendant’s negligence. The plaintiff was a carpenter, and at the time of the accident was working in the defendant’s bank building, which was being reconstructed and repaired. With another carpenter he was standing upon a plánk laid across two wooden horses engaged in putting a casing into a window frame. The plank was eight to ten feet above the floor. It broke and the two men fell, and plaintiff received the injuries for which the recovery was had.

The action was"brought under section 18 of the Labor Law (Laws of 1897,. chap. 41,5) and was so tried and submitted to the jury. The recovery must, therefore, be sustained, if at all, under .the statute. Section 18 of the Labor Law provides: “ 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 arid operated as to giye proper protection to the life and limb of a person so .employed or engaged.” >

The court held as matter of law that the relation of master and servant existed between the defendant and plaintiff, and that the structure was a scaffold under section 18 of the statute. It submitted to the jury only the question whether the scaffold was safe, suitable and proper, charging that if it was not so the plaintiff was entitled to recover.' The defect complained of was only that the plank was not strong enough for the purposes for which it was used.

There was considerable evidence given bearing upon the relations between the plaintiff and the defendant and the firm of Roberts & Williams -whose general employee plaintiff was. It seems to us the question as to whether the relation of master arid servant existed between the plaintiff, and defendant was, at least-, a question for the jury and not for the court, and if for the court it must be based solely upon the evidence given in behalf of defendant and should have been determined in defendant’s rather than plaintiff’s favor.

Moreover, this structure was not such a scaffold as was within the contemplation of the Legislature in enacting the Labor LaWn (Schapp v. Bloomer, 181 N. Y. 125 ; Stokes v. New York Life Ins. Co., 112 App. Div. 77; Sutherland v. Ammann, Id. 332.)

In the Sohapp case the court, among other tilings, said : “ The limitation to specified cases shows that it (the statute) was not intended to include scaffolding in all cases. What the Legislature evidently had in mind was.scaffolding on buildings or structures where its use was obviously dangerous to life and limb of an employee thereon in case of a fall. If ordinary staging, put up in a room from four to six feet above the floor, to facilitate the placing of fixtures, was intended to be included as among the specified cases, we should find it difficult to suggest a scaffold that would riot* fall within the limitation of the statute. To so hold would practically extend it to all cases in which scaffolds are used. ' This would be an unauthorized departure from the rule of construction to which we have called attention.” - .

This language goes farther than holding-that that case was not covered by"the statute because the scaffold was being used for putting up of shafting, á use not covered by the language of the statute. '/This same principle was applied..in the two Appellate Division cases cited above.

Again, this structure was a movable one, composed of two horses- and a plank, and prior to the accident it was moved from- place to place by the plaintiff and his colaborers.' The adjustment of the plank upon the horses was within the control of these men, and was made by them before the accident occurred. - They had worked upon it safely for some time before it was changed and the plank • was readjusted by them, and it had served them properly -down to the time the accident occurred. If in the readjustment the horses had been placed a little nearer together,' it would not have broken . when it did. There were many other planks about ' the premises which could have been used by these men to reinforce the one they '.were using. "■ .

Under these circumstances-, Certainly, the defendant could not be held liable for the injuries to the plaintiff, for which plaintiff and' his colaborer were-alone responsible. (Eotondo v. Smyth,_ 92 App.' Div. 153; Stokes V. New York Life Lns. Go., 112. id. 77; Hutton v. Holdrook, etc., Gontraeting Go., 139 Fed. Rep. 734.)

• All concurred, except Kruse, J., who concurred in result only, and Spring, J., who dissented.