Mizak v. Carborundum Co.

The action is by servant against master for damages for personal injuries sustained by the fall of a ladder by which plaintiff was attempting to ascend from the ground floor to a platform, a distance of about 12 feet, in the manufacturing plant of defendant. The accident occurred on August 9, 1910. The action is brought under the employers’ liability provisions of the Labor Law. Plaintiff was employed as a machinist’s helper, and as such went to all the different parts of defendant’s manufacturing plant to assist the machinist in the inspection and repair of the machinery. The accident happened in the transformer room, so called. The foreman had instructed the machinist and plaintiff, his helper, to inspect and, if necessary, repair the conveyor and certain machinery which was then in operation on the second floor above the transformer room. To reach this second floor a ladder was used, which stood on the cement floor of the transformer room and leaned against a platform about 12 feet above the floor; the ladder being about 13 feet in length. It was necessary to ascend this ladder to the platform, and from the platform were stairs leading up to the second floor. This ladder was used exclusively for this purpose, and had stood at the same place in the transformer room, with its top leaning against the platform above, for five or six years. It afforded the only means of access to the platform and stairs above. The machinist ascended the ladder first, and after he had reached the platform plaintiff undertook to follow him, but before plaintiff reached the platform the ladder fell, precipitating plaintiff toi the cement

[1-4] The present case presents a different question. Section 18 of the Labor Law is not applicable, because tire ladder in this case was not being used in the erection, alteration, or repair of any building ■or structure. The ladder upon which plaintiff here was injured was not an appliance furnished to plaintiff to use in any part of defendant’s premises where he should need a ladder, but was furnished and located permanently as a means for all of defendant’s servants to ascend to the platform and stairs leading to- the second floor who should have occasion to do so. In other words, it was a substitute for stairs, and for this reason appellant contends that it was a “way,” within section 200 of the Labor Law. We quote that part of the section upon which appellant relies as it stood prior to the amendment of 1910 (Laws 1910, c. 352), as that amendment did not take effect until September 1st of that year and after this accident:

“Sec. 200. When personal injury is caused to an employs who is himself in the exercise of due care and diligence at the' time: 1. By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer which arose from or had not been dis-covered or remedied owing to the negligence of the employer or of any person-in the service of the employer and intrusted by him with the duty of seeing that the ways, works or machinery were in proper condition, * * * the employs * * * shall have the same right of compensation and remedies against the employer as if the employs had not been an employs of nor in the service of the employer nor engaged in his work. * * * ”

This section has not apparently laid any additional duty upon the employer in reference to the safe condition of his ways, works, or machinery than he was under at common law. Mappa v. Erie R. R. Co., 195 N. Y. 176 , 88 N. E. 30 , 21 L. R. A. (N. S.) 96 ; Gmaehle v. Rosenberg, 178 N. Y. 147 , 70 N. E. 411 . But it has deprived the master of some of the defenses which he had at common law. At common law it was the duty of the master to furnish to the servant a,

If we are right in this, it was error to nonsuit plaintiff, and plaintiff’s exceptions should be sustained, and the motion to set aside the nonsuit and for a new trial should be granted, with costs of this appeal to plaintiff to abide the event. All concur.