Stewart v. Ferguson

McLaughlin, J.

(dissenting):

I am unable to concur in the conclusion reached by Mr. Justice Rumsey in this case. The learned trial justice was requested by the defendant’s counsel to charge: “ That the happening of the accident created no presumption of negligence on the part of the defendant, but the burden is upon the ¡ilaintiff to establish by a fail-preponderance- of credible testimony that the falling of this scaffold was due to the negligence of the defendant and without any negligence on the part of the decedent which contributed thereto.”' The request was refused and an exception taken. After the jury had retired they sent the following communication to the court: “ If it has not been shown by the evidence that the scaffold was defective, can the defendant be held liable by reason of its fall? ” to which the court answered, “ I have already charged you that the falling of this scaffold, unexplained, raises a presumption of. negligence on the part of the employer, and that presumption would justify a finding on your part of negligence on the part of the employer.”

• This, I think, was an erroneous instruction as to the law applicable to the facts, and for- that reason the exception to the refusal to charge as requested was well taken. The falling of the scaffold, under the facts set out in this record, created no presumption whatever that the defendant was guilty of negligence, and before the plaintiff could recover he should have established, in addition to the fall of the scaffold, that the defendant had been guilty of some act, either of omission or commission, which resulted in the death of his intestate. It is uncontradicted that the scaffold was in the process of construction, and when the plaintiff’s intestate went upon it it had not then been completed.

In the prevailing opinion stress is laid upon the fact that the scaffold was not constructed in accordance with the Labor Law, so called (Laws of 1897, chap. 415, § 19), in that it would not sustain four times the maximum weight required to be put upon it when in use. Just what application this statute has to a scaffold not completed, but in the process of construction, or how it can be resorted to for the purpose of sustaining the judgment under the facts set out in this record, I am unable to see. Manifestly it was intended that the statute should apply only to completed scaffolds and not to those in process of construction.

The defendant was entitled to have the jury instructed as requested by his counsel, and for the refusal of the court to thus instruct them I think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.