Summary
In Madden v. Hughes (104 App. Div. 101) the court said: "The appellants also insist that the statute does not apply for the additional reason that the platform was furnished by the men themselves and not by the defendants. * * * If the statute applies only to a case where the master in fact furnishes and erects the contrivance, it has not changed the rule at common law as declared in Butler v. Townsend (126 N.Y. 105). The purpose of the statute was to impose an absolute duty on the master which could not be delegated."
Summary of this case from Warren v. Post McCordOpinion
April, 1905.
Charles C. Nadal [ William D. Stiger with him on the brief], for the appellants.
Stephen C. Baldwin [ Frederick S. Martyn with him on the brief], for the respondent.
Present — HIRSCHBERG, P.J., BARTLETT, JENKS, RICH and MILLER, JJ.
The determination of the questions involved in this case depends mainly upon whether section 18 of the Labor Law (Laws of 1897, chap. 415) is applicable. The "structure" in "repairing" or "altering" which the plaintiff claims to have been employed was a scow divided into twelve pockets fifteen feet long and fourteen feet deep separated by bulkheads; the alterations or repairs consisted in placing a beam fourteen inches square lengthwise across the middle of each pocket, the ends resting in holes bored in the bulkheads. While boring the holes and elevating the beam into position the men at either end of the pocket stood upon a platform consisting of two spliced spruce planks from two to three inches thick resting upon the slanting sides of the pocket about eight feet from the bottom and fastened at either end by a rope. While the plaintiff and a fellow-workman were attempting to place the beam in position its end became jammed against the side of the pocket, and while they were attempting to push it into its place, the platform broke about three feet from the splicing, precipitating the men into the bottom of the pocket, causing the injuries of which the plaintiff complains. Beams frequently got "jammed" in that manner so as to require extra pressure to place them in the hole. The plaintiff had been doing this work about two months. These platforms were made by a carpenter in the manner directed by the defendants' foreman. The plaintiff testified that when he first saw the platform that broke it was in position; that sometimes he had helped put the planks in; the carpenter who spliced the planks testified that the plaintiff assisted in bringing them to him.
We may start with the premise that this scow was a structure within the meaning of section 18 of the Labor Law, but the learned counsel for the appellants, while not presenting the question in his brief, urged upon the oral argument that the placing of these beams in the scow was not a repair or alteration within the meaning of the statute. They were to become a permanent part of the structure, and it does not seem to be necessary to indulge in any refinements of reasoning as to what constitutes an alteration, because a substantial change in the structure itself would seem to be an alteration; this is not a case of the installation of fixtures or machinery. The appellants also insist that the statute does not apply for the additional reason that the platform was furnished by the men themselves and not by the defendants; so far as this proposition involves the effect of the plaintiff's having provided the platform himself, we need not now consider it, because the jury were warranted in finding from the plaintiff's evidence that he had had nothing to do with the construction or placing of this platform, and accepting the evidence of the defendants' witness to the effect that the plaintiff brought planks to him from which he constructed these platforms, it cannot be said that the mere act of carrying planks, from which some one else constructed the contrivance, constituted the furnishing or "erection" of the contrivance itself; and so far as the appellants' contention relates to what was done by the plaintiff's fellow-servants, the argument is based upon a misapprehension of the purpose and effect of the statute. If the statute applies only to a case where the master in fact furnishes and erects the contrivance, it has not changed the rule at common law as declared in Butler v. Townsend ( 126 N.Y. 105); the purpose of the statute was to impose an absolute duty on the master which could not be delegated. ( Stewart v. Ferguson, 164 N.Y. 553; Holloway v. McWilliams, 97 App. Div. 360.) We are of the opinion that within the meaning of the statute the plaintiff was employed in the repairing or altering of a structure, and that the platform was a mechanical contrivance caused to be furnished or erected by the defendants. These conclusions are not in conflict with Schapp v. Bloomer ( 181 N.Y. 125) or Wingert v. Krakauer ( 92 App. Div. 223), which were cases where the contrivance was erected to facilitate the installation of machinery or fixtures.
No point is made but that the breaking of the plank, unexplained, was sufficient to warrant the submission of the question of defendants' negligence to the jury. (See Tierney v. Vunck, 97 App. Div. 1.) The question of plaintiff's contributory negligence was properly submitted, and it cannot be said as matter of law that he assumed the risk; the plank evidently broke because of the extra strain caused by the men attempting to push the beam into place, but the plaintiff had a right to assume that the master had made the platform safe, suitable and proper to stand the strain to which it was frequently subjected in the hoisting of the beams; he undoubtedly knew that the platform consisted simply of the two planks spliced together, but there is no evidence that he knew how much weight they would sustain; the situation was not so obvious that he was bound to know, considering his right to rely upon the assumption that the master had discharged his duty, and the question could not, therefore, be disposed of as one of law. ( McLaughlin v. Eidlitz, 50 App. Div. 518; Jenks v. Thompson, 179 N.Y. 20.)
The exceptions to the charge and refusals to charge do not require further discussion. Reading the charge as a whole, it is clear that the case was fairly submitted to the jury in accordance with the conclusions already stated, and so far as a contrary meaning is sought to be placed upon isolated sentences, it is sufficient to say that such construction is not warranted by the context, and that the jury could not have understood that any rule of law was applicable to the case not in harmony with the principles controlling us in this decision. We cannot say that the verdict was excessive, and the judgment and order must, therefore, be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.