Tiedjen v. National Elevator Co. , 126 N.Y.S. 304 ( 1910 )

Clarke, J.:

This is an appeal from a judgment entered On the dismissal of the complaint .at the close of the plaintiff’s case. Upon the’ former appeal (130 App. Div. 504) this court reversed a judgment entered upon a verdict for the plaintiff. Mr. Justice Houghton wrote a dissenting opinion in which I concurred. The facts were stated in that opinion, so that it is not now necessary to restate them.

For the reasons stated in that former opinion, upon the further fact that the judgment here under consideration was upon a dismissal of the complaint, and that, in my opinion, such a state of facts was presented by the evidence as required submission to a jury and precluded the court from acting thereon as matter of law, I think this judgment should be reversed.

Warren v. Post & McCord (128 App. Div. 572), in which the majority of this court held that under the provisions of sections 18. and 19 of the Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], as amd. by Laws of 1899, chap. 192; now Consol. Laws, chap. 31 ; Laws of 1909, chap. 36) the duty to furnish a safe scaffold put. lipón the master .was an absolute duty which could not be delegated, and the fact that the servant selected the materials and erected, the structure did not bar a recovery, has been unanimously affirmed by the Court of Appeals (198 N. Y. 624).

Although there was no eye-witness to the accident, immediately thereafter the scaffold was seen swinging away from the wall, with the piece of furring which had been used as a brace hanging down, and upon the iron braces supporting the elevator track, four feet under the far end of the scaffold, was a large blood stain. In my opinion enough was shown to have warranted the jury to have found as a fact that the decedent was upon the scaffold in the performance- of the master’s work, and that-his fall therefrom was due to the fact that the scaffold had been imperfectly braced and- secured, and hence that there was a violation by the master of the obligation put upon him by the law. - ",

The dismissal of the complaint was, therefore, error, and the judgment appealed, from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Scott and Dowling, JJ., concurred; Ingraham, P. J., and Miller, J., dissented on the opinion on former appeal (130 App. Div. 504).

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.