Peter Keeler Building Co. v. E. H. Titchener & Co.

to erect, at the State Fair Grounds near Syracuse, N. Y., a building designated by the contract as the “ Poultry Building.” Thereafter the plaintiff entered into a contract with this defendant, by which the latter, among other things, agreed to erect certain wire guards under the skylights in the poultry building. The contract was made by two brief letters, one containing an offer by the defendant, and the other containing an acceptance by the plaintiff. The defendant wrote: “We will furnish and erect wire guards under skylights (2) and wire work around Duck Pond Pergola as per specifications for above building for the sum of $680.00, except using crimped wire instead of electric welded and 1 in. channel frame. Scaffold to be furnished and erected by you. Drawing to be submitted by us for approval. Wire work to be shipped Aug. 15, 1913, and erected immediately if building is ready for same and all wire work to be painted one shop coat red lead.” In answer the plaintiff wrote: “We hereby accept your estimate of even date for wire work on Poultry Bldg. State Fair Grounds, Syracuse, N. Y., for $680.00. Payments 50% on delivery, balance within thirty days after completion.” The plaintiff thereafter erected a scaffold to be used by the defendant in the performance of its contract. While the wire guards were in the course of erection by laborers of the defendant who were engaged in work upon the scaffold, the scaffold collapsed, with the result that an employee of the defendant, named Perry, was precipitated to the floor below, and was more or less seriously injured. Perry then brought an action against this plaintiff to recover damages for personal injuries, alleged to have been caused by the negligence of the plaintiff. He charged in his complaint that the defendant there, who is the plaintiff here, was guilty of negligence “ in that defendant used in the construction of said scaffold, materials that were improper, weak, defective, unsafe, rotten, dangerous and weak and not of sufficient strength to withstand the weight that defendant knew would be placed thereon; in that defendant failed and neglected to repair said scaffold and make the same safe; in that defendant employed a dangerous and unsafe method of erecting said scaffold and did not construct the same as is usual, practicable, safe and customary; in that defendant failed and neglected to brace said

he was thereby relieved. The contention that the user of a defective scaffolding, who fails to make a test to discover its defects, on that account becomes liable to the builder of the scaffolding, who creates the defects, for the damages which the latter is obliged to pay, is not grounded in good sense. Shorn of elaboration it means that not to detect a wrong is a greater fault than the wrong itself. Nor does the argument that the defendant by overloading the scaffolding made himself responsible commend itself, when it is remembered that the damages sought to be recovered are those awarded because the scaffolding was insufficient to carry the contemplated load, and, without overloading, fell to the ground. The defendant having been notified by the plaintiff to defend in the Perry action, the determination therein made bound both these parties so far as the issues decided there were identical with the issues decided here. It was there conclusively determined for the purposes of that action as well as this that the collapse of the scaffolding was due to faults in construction rendering it unable to bear the very load for which it was agreed to be built. Manifestly that which cannot bear a designed load, and, therefore, falls, cannot be overloaded or fall by reason of the imposition thereon of an excess load over the designed load. Cases are not infrequent where the owner or user of a dangerous structure is given reimbursement at the hands of the primary wrongdoer who built the structure or made it dangerous, and all the cases cited by the respondent are of this nature. This, however, is the reverse case of the primary wrongdoer seeking to recover from the innocent user the very damages which he had to pay because he built a scaffolding for a particular use, and the scaffolding was unable through defective design, incompetent workmanship or inferior material to meet that very use. The cause of action attempted to be alleged was not well grounded and should receive no recognition.

The judgment should be reversed and the complaint dismissed.

All concur, except Cochrane, J., dissenting, with a memorandum, in which Woodward, J., concurs.

The jury has found that as between the parties to this action the defendant was the primary wrongdoer. That question was not involved in the Perry action. He recovered against the plaintiff herein under the provisions of the Labor Law (§ 18, as amd. by Laws of 1911, chap. 693) imposing on the latter as between itself and Perry the positive duty of building a safe scaffold regardless of the negligence of third parties. As between Perry and this plaintiff it was the duty of said plaintiff to anticipate the overloading of the scaffold by this defendant or other acts of negligence on its part and to protect Perry against the same. The plaintiff could not defend the Perry action on the ground that his employer had been negligent in placing an undue strain on the scaffold. The issue here is entirely different. By the improper use of the scaffold the defendant subjected the plaintiff to a liability for which as between themselves the defendant was primarily responsible.

I, therefore, favor an affirmance of the judgment.

Woodward, J., concurs.

Judgment and order reversed, and the complaint dismissed.