Stewart v. Ferguson

This case has been twice heard upon appeal, and is reported in 34 App. Div. 515 , 54 N. Y. Supp. 615 , and 44 App. Div. 58 , 60 N. Y. Supp. 429 . We see no reason to change the rules laid down in those opinions, especially as our interpretation of the statute has been adopted by the Second department in the case of McAllister v. Ferguson (Sup.) 64 N. Y. Supp. 197 , where the liability of this defendant was in question for an injury received by another workman by the falling of the same scaffold by which Stewart was killed, and also in the case of McLaughlin v. Eidlitz (Sup.) 64 N. Y. Supp. 193 ,—each decided at the April term, 1900. The uncontradicted testimony is that the scaffold was built on the afternoon before it fell, and that while it was in process of construction, and before the builders ceased work upon it, Stewart, the plaintiff’s intestate, a mason in the employ of the defendant, and who had taken some slight part in its construction "on the previous day, was ordered by one Montague, the defendant’s foreman, to go upon it, and did so. There is no evidence to show that Stewart had any knowledge or information as to the extent or kind of work done to the scaffold after he had himself worked upon it. It appears, however, that, before it was completed, Montague, the foreman who was in charge of the work, called away the men engaged in building it while it was, in the opinion of those men, in a dangerous condition. Stewart worked on the scaffold on the afternoon of the 22d but a short time. On the morning of the 2.3d the masons went to work at the usual time, and at about quarter past 9 o’clock, suddenly and without warning, and without any cause, so far as appears, the scaffold gave way, and the men upon it fell with it, and Stewart was killed, and McAllister seriously injured. It appears affirmatively that at the time the scaffold fell there were at work upon it four men, with two barrows of brick and two barrows of mortar, and the undisputed testimony was that that amount of material was required for the work of the men upon the scaffold. The labor law forbade any person who employed another to perform labor in the erection of any building to furnish or erect, or cause to be furnished or erected, for the performance of such labor, a scaffold which was unsafe, unsuitable, or improper, and which was not so constructed as to give proper protection to the life and limb of the person so employed. Laws 1897, c, 415, § 18. In re

The only question in the case arises upon the refusal of the court to charge one of the requests asked by the defendant. That request was “that the happening of the accident created no presumption of negligence on the part of the defendant, but the burden is upon the plaintiff to establish by a fair 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.” So far as the question of contributory negligence was concerned, the court had already charged that, if the ■decedent went upon the scaffold knowing it to be unsafe and defective, and having presented to his vision obvious risks, he was then guilty of contributory negligence, and assumed the risk, and cannot complain of the result. On that question the charge was as favorable as the defendant had the right to. request, and the court was not called upon to repeat his charge in that regard. It is evident that the jury might assume from the charge that they were at liberty to say from the proof that the fall of the scaffold was of itself evidence of negligence on the part of the defendant, for they came into court, and asked the question, “If it has not been shown by the ■evidence that the scaffold was defective, can the defendant be held

But, even without resorting to the statute, upon the undisputed facts in this case the refusal to charge as requested and the explanation of the refusal were correct. It was held in the case of Green v. Banta, 48 N. Y. Super. Ct. 156 , that the fact that a scaffold which had been provided by an employer for his servant to work upon gave way without any reason was prima facie evidence of negligence on the part of a person bound to provide a safe and proper scaffold. In that case the court had charged the jury that the fact that the scaffold gave way was some evidence—what might be called prima facie evidence—of negligence on the part of the person bound to provide the scaffold. That charge was approved by the general term, and the case was affirmed in the court of appeals ( 97 N. Y. 627 ) without opinion. Certainly the court of appeals sustained the proposition which was essential to the determination of the case. In the

PATTERSON, P. J., and HATCH, J., concur.

(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 plaintiff to establish by a fair 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 1897, c. 415, § 18), in that it would not sustain four times the maximum weight required to be put upon it when in use. Just what

The defendant was entitled to have the jury instructed as requested by its 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.

I concur with Mr. Justice McLAUGHUN. It is quite clear that in this case the only ground upon which the defendant could be held guilty of. negligence was in directing or permitting his employ és to use an incompleted scaffold, which, when used, was unsafe. The evidence is uncontradicted that at the time the scaffold fell it was incomplete, and there is no evidence to show that, if completed, it would not have been safe. The falling of such an incompleted scaffold was not of itself evidence of negligence on the part of the defendant. More was required. It was necessary to show that he directed or permitted his employés to use the scaffold in its unfinished condition. The negligence for which the defendant was liable, therefore, was not the improper construction of the scaffold, but the use to which it was put in its unfinished condition; and for that reason I do not think that the mere falling of the scaffold would create a presumption that the defendant was negligent. There was no direct evidence that Montague (the defendant’s foreman) directed the deceased to work upon the scaffold before it was finished. There was evidence, however, from which the jury could infer that the defendant directed or permitted him to work there, and in that case would have been justified in a finding of negligence; and I think, therefore, that the defendant was entitled to have the jury instructed that the mere happening of the accident (fall of the scaffold) created no presumption of negligence on the part of the defendant. I do not think, however, that it can be said that a fall of a scaffold, without other evidence, would create a presumption of negligence. It might be evidence from which a jury could find negligence, but that is a very different proposition. There are some cases—like that of a common carrier of passengers— when the happening of an accident may create a presumption of negligence, but I do not understand that the duty of an employer to his employés rests upon the same principle. In such a case it is a question of evidence, and that there cannot be, from the happening of the accident, a presumption that the defendant was negligent. That the refusal to give this instruction was vital in the disposition of the case is shown by the subsequent charge, when the jury asked for further instruction, and the court told them that the falling of the scaffold, unexplained, raised a presumption of negligence on the part of the employé; and it was only after this explicit instruction that the jury found a verdict for the plaintiff. This, in effect, was a direction to find a verdict for the plaintiff. I think, therefore, that there should be a new trial.