Cooke v. Maxwell , 160 N.Y.S. 986 ( 1916 )

Putnam, J.:

The risk to painters and others employed on the outside walls of buildings caused it to be made a misdemeanor knowingly or negligently to furnish and erect “such unsuitable or improper scaffolding-, hoists, stays, ladders, or other mechanical contrivances as will not give proper protection to the life and limb of any person so employed or engaged.” (Laws of 1885, chap. 314; Penal Code, § 447a, added by Laws of 1893, chap. 692, as amd. by Laws of 1897, chap 416; now Penal Law, § 1276.) An amendment was added requiring a safety rail “if any such scaffolding or staging swung or suspended from an overhead support or supports shall be more than twenty feet from the ground or floor.” (Laws of 1891, chap. 214.) In the Labor Law of 1897 this read: “ Scaffolding or staging swung or suspended from an overhead support, more than twenty feet from the ground or floor, shall have a safety rail of wood, properly bolted, secured and braced,” etc. (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 18.) This was retained in the revision of 1909. (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18.)

In 1911 the duty was enlarged to cover stationary scaffolds, so that the clause with the new insertions read: “Scaffolding or staging swung or suspended from an overhead support, or erected with stationary supports, more than twenty feet from the ground or floor, except scaffolding wholly within the interior of a building and which covers • the entire floor space of any room therein, shall have a safety rail of suitable material, properly bolted, secured and braced,” etc. (Laws of 1911, chap. 693.)

Appellant contends that, although during the progress of this work this scaffold had been raised over twenty feet from the ground, defendant was not liable for the absence of a safety rail, if plaintiff’s fall was less than twenty feet; that it is the fall and the scaffold’s height at that moment that fixes the- duty to provide such á guard rail.

Had this scaffold, hanging from an anchorage to this high cornice, been always maintained less than twenty feet from the ground, another question would be presented. But a swinging scaffold suspended at various levels, rising from the ground up to nearly seventy feet, must be within the compass of this statute. The object of a safety rail is to enable the workman to keep his balance Bo that when absorbed in his work he will not fall through inattention, or by the force of the wind. The courts by construction should not narrow the scope of such a needed protection.

The 1st subdivision of section 7 of the English Workmen’s Compensation Act of 1897 (60 & 61 Vict. chap. 37) declares that it shall apply to employment “on, in or about any building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished.” It was argued that compensation should only go to workmen exposed to the risk of falling thirty feet, but the English decisions have applied the thirty feet to the height of the structure, not to that of the scaffold. (Labatt Mast. & Serv. [2d ed.] 5513.)

Even without a special guard rail enactment, it has been held that a scaffold swinging eighteen feet from the ground unprovided with a safety rail is an unsafe place. (Kirby Lumber Co. v. Hamilton, 171 S. W. Rep. 546.) It would frustrate the legislative intent to hold here that where the scaffold has been lowered during the progress of the work from a dangerous height an employer escapes all liability for such necessary protection the moment that scaffold passed below twenty feet from the ground.

The other exceptions taken in the course of the trial, including that to the charge, do not present error.

I advise to affirm the judgment and order, with costs.

Present—Jenks P. J., Care, Stapleton, Rich and Putnam, JJ.

Judgment and order unanimously affirmed, with costs;