Holloway v. McWilliams

This is a riegligence suit, arising out of the death -of the plaintiff’s intestate while working for the defendant upon a scaffold in front of the bow of a scow in the defendant’s shipyard. The complaint expressly charged the defendant with having negligently violated chapter 415, p. 461, of the Laws of 1897, commonly known as the “Labor Law.” At the conclusion of the trial the case was left to the jury in a charge to which neither party took an exception, and the ■only questions presented by this appeal relate to the subsequent action of the trial judge in charging 16 requests presented by the defendant. Many Of the instructions thus given to the jury involved the legal proposition that the duty of a master to his servants in such a case as this was fully performed by furnishing proper materials for the construction of the scaffold which broke, so that, where a master committed the details tif the construction of the scaffold to his servants, and their negligence in carrying out those details resulted in injury to a fellow servant, the master was not chargeable. This was the rule sanctioned in Butler v. Townsend, 126 N. Y. 105 , 26 N.

For this error we think the judgment should be reversed.

(dissenting). I am unable to concur in the opinion about to be handed down by this court, which holds that it was error for the court at trial term to charge the following request:

“That if the jury is satisfied from all the evidence that the defendant furnished to the decedent and his fellow servants, for the performance of their labor, in working at the place of the accident, safe, suitable, and proper materials and scaffolding for their use in the performance of their work, that then, and in that event, plaintiff cannot recover, and the defendant is entitled to a verdict.”

_ It is conceded that this is a correct statement of the defendant’s liability as it would have existed prior to the enactment of the Labor Law, but it is held to be wholly incorrect under the new rule established by that act.

Section 18 of the Labor Law (Laws 1897, p. 467, c. 415), in so far as it has any bearing upon the questions here presented, reads as follows:

“A person employing or directing another to perform' labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.”

The fourth paragraph of section 19 of chapter 415, p. 468, of the Laws of 1897, to which attention is called, provides that:

“All swinging and stationary scaffolding shall be so constructed as to bear four times the maximum weight required to be dependent therefrom or placed thereon, when in use, and not more than four men shall be allowed upon any swinging scaffolding at one time.”

_ This, read by itself, would seem to have some bearing upon the question, but when the whole section is brought into consideration it will be discovered that this paragraph simply furnishes a standard by which policemen in cities, called upon to inspect scaffolding, ropes, blocks, pulleys, and tackle, are to determine their duties, and does not pretend to add to the duties of the master as described in the previous section. Section 19, p. 467, provides that “whenever complaint is made to the commissioner of police, superintendent or other person in charge of the police force of a city, that the scaffolding or the slings, hangers, blocks, pulleys, stays, braces, ladders, irons or ropes of any swinging or stationary scaffolding used in the construction, alteration, repairing, painting, cleaning or pointing of buildings within the limits of such city, are unsafe,” etc., such police commissioner or other person “shall immediately detail a competent police officer to inspect such scaffolding,” etc.

I am aware that in Stewart v. Ferguson, 52 App. Div. 317 , 65 N. Y. Supp. 149 , a divided court, in discussing this provision of section 19 of the Labor Law, declared that “this establishes a criterion of the safety of a scaffold to which it is the duty of the master to conform; and, if it appears that a scaffold which he has erected for the use of his employés does not possess the strength which the statute requires, the master clearly fails to do the duty towards his employé which the statute has imposed upon him”; and that the Court of Appeals, in affirming the same case ( 164 N. Y. 553 , 556, 58 N. E. 662 ), incidentally accepts this view of the law, without taking into view the whole of the section, or at least without setting out more than this single clause of the section. But this was not necessary to the determination of the question before the court, and if, as sometimes happens, broader statements are made by way of argument or otherwise than are essential to the decision of the questions presented, they are the dicta of the writer of the opinion, and not the decision of the court. A judicial opinion, like evidence, is only binding so far as it is relevant; and when it wanders from the point at issue it no longer has force as an official utterance. Roberson v. Rochester Folding Box Co., 171 N. Y. 538 , 551, 64 N. E. 442 , 59 L. R. A. 478 , 89 Am. St. Rep. 828 , and authority there cited. In the Stewart Case, supra, the court had charged the jury, without exception, that under this statute the duty devolved upon the defendant to exercise reasonable care and precaution to furnish a safe scaffold for his workmen, and that the first question for them to determine was whether the defendant used proper care and reasonable precautions in furnishing

It has been suggested, however, that while the question of the effect of section 19 of the Labor Law was not necessarily involved in the Eerguson Case, supra, the Court of Appeals has since had the question under consideration, and has determined the question finally; but I am unable to discover any such necessary result from its recent opinion in the case of Jenks v. Thompson, 179 N. Y. 20 , 71 N. E. 266 . On the contrary, that case appears to me to support the view which I have taken of the Labor Law, in so far as it has any bearing upon the question. Upon the trial of that action the plaintiff offered evidence of men who had had long experience in carpenter work, and who were shown to be familiar with the construction of scaffolds, bearing upon the question of whether the scaffold, as constructed and afforded to the plaintiff for the purpose of enabling him to perform his work, was a safe, suitable, or proper scaffold; and the exclusion of such evidence on the ground that it was immaterial and irrelevant was held to constitute reversible error. This necessarily held that the question of whether a scaffolding was safe, suitable, and proper was a question for the jury, under the provisions of section 18 of the Labor Law; and, if it is a question for the jury, which may be determined upon expert evidence, where the injury results from an alleged springing of the boards constituting the platform of such scaffolding, it seems to me that it presents equally a question of fact where the injury results from the breaking of such boards. The rule laid down by this section is that the employer shall not furnish or “cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” If a question of fact in reference to the scaffolding is for the jury in one case, it is equally proper in another; and the Jenlcs Case, supra, seems to hold that it is a question which may be determined by expert evidence. It is difficult to understand, if a master has provided scaffoldings, etc., which are not “unsafe, unsuitable, or improper,” how he can, under a system which guaranties the equal protection of the laws, be compelled to have a scaffolding which is able to bear four times the weight ordinarily to be suspended upon such scaffolding, while the employé is only called upon to exercise that reasonable degree of care which the circumstances seem to demand as a condition of his recovery. Why should the employer not only be called upon to provide scaffoldings, etc., which are not unsafe, unsuitable, or improper, b.ut scaffoldings which can, by no possibility, break down under the load to be placed upon them, while the employé is only held to reasonable care? Is there any good reason for this discrimination? Does a fair reading of the entire statute demand such discrimination? Is it right and proper, when the master has exercised that degree of care which a reasonably prudent man should exercise in preserving his own life and limb, and has provided a platform which men of experience regard as not unsafe, unsuitable, or

The learned court in Stewart v. Ferguson, 52 App. Div. 317 , 65 N. Y. Supp. 149 , suggests that this court has adopted its interpretation of the statute as laid down in the previous discussions of the same case in McAllister v. Ferguson, 50 App. Div. 529 , 64 N. Y. Supp. 197 , and in McLaughlin v. Eidlitz, 50 App. Div. 518 , 64 N. Y. Supp. 193 ; and this is perfectly correct in so far as the question relates to the provisions of section 18 of the Labor Law, which was the only portion of the statute under review in these cases. In the McLaughlin Case, supra, we adopted the view of the First Department that “the obligation imposed by the statute resting upon the master is absolute to furnish safe and suitable scaffolding, hoists, stays, ladders, and other mechanical contrivances for the use of its employés. The duty thus to furnish being absolute, the obligation is at all times made the act of the master, which he may not delegate to another, and from which he may not shelter himself from responsibility if the structure be in fact unsuitable and unsafe; the rule in this respect being to make the measure of obligation of the master such as is laid down in Crispin v. Babbitt, 81 N. Y. 516 , 37 Am. Rep. 521 .” This gives to section 18 of the Labor Law as broad an interpretation as it is capable of under any reasonable rule, and marks the limit to which this court is committed in respect to the construction to be put upon this statute. It is absurd to say that there is an absolute duty imposed upon the master to furnish a safe, suitable, and proper scaffold, which all of these cases recognize as presenting a question of fact to be determined by the jury; and then to say that such safe, suitable, and proper scaffolding can only meet the requirements of the statute by conforming to an arbitrary standard of strength. It takes from the jury the question of whether the scaffolding was a safe, suitable, and proper one, and makes the employer practically an insurer of the absolute safety of such scaffolding, although he may have exercised all of the care and foresight of which the human mind is capable, for it could never be that a scaffolding, every board, rope, hook, or other appliance of which was capable of withstanding four times the strain to be put upon it when in use, would ever fall, in the absence of some great violence applied to such appliances. This is not the law, for it has been well said in Stewart v. Ferguson, 34 App. Div. 515 , 520, 54 N. Y. Supp. 615 , 619, that “the rule which now exists with regard to the building of scaffolds is that it is a personal duty of the master to use

Statutes should be construed, if possible,- so as to avoid absurdity and manifest injustice. People v. Buffalo Fish Co., 164 N. Y. 93 , 97, 58 N. E. 34 , 52 L. R. A. 803 , 79 Am. St. Rep. 622 , and authority there cited. Clearly, it would be both absurd and unjust to construe this statute so as to compel even the most prudent and painstaking employer to "become liable, if, through latent and undiscoverable defects, a scaffolding, constructed with every precaution which intelligent care could suggest, happened to fall while workmen were engaged upon it. It is the duty of the courts to construe statutes so that they may be rendered practicable, just, and reasonable (People v. Buffalo Fish Co., 164 N. Y. 97 , 58 N. E. 34 , 52 L. R. A. 803 , 79 Am. St. Rep. 622 ), and this result is accomplished by reading section 18 of the Labor Law as providing the master’s duty of using reasonable care in the erection of scaffolds to make them safe, suitable, and proper; while section 19 is held to relate only to the standard to be adopted by policemen in their inspections, that there may be no failure to secure the safety of employés where there is any question upon this score. This gives effect to every part of the statute, makes it harmonious, reasonable, and just in its administration. It leaves the question of defendant’s negligence to be determined by the jury upon the. evidence in the case upon the basis of that reasonable degree of care which the law ever exacts; while the rule contended for by the plaintiff makes the statute harsh and arbitrary, deprives several of its provisions of effect, and works gross injustice, where the defendant has not, in fact, neglected any duty which he owes to the plaintiff. Section 19 of the Labor Law is devoted to the “inspection of scaffolding, ropes, blocks, pulleys and tackle in cities.” It has no relation to scaffoldings and their appliances in the state generally outside of cities, and it cannot, therefore, be read or construed as providing a standard of strength for the scaffoldings mentioned in section 18, which is general in its application to all parts of the state. Section 19 is a special provision relating to police supervision in cities, in aid of the high policy of the state to preserve human life, independently of the liability of the master for negligence in respect to his employés, and it should be confined in its operation to this clear intention of the Legislature.

If we are right in this construction of the statute, the questions raised by the plaintiff’s exceptions to the granting of defendant’s requests to

But the accident did not occur while Holloway was at work upon the platform which the defendant had erected. He worked upon the scaffolding above described until about 10 :30 a. m. of the day of the accident, when it became necessary to lower the platform. Holloway, with the three other men who were engaged in the work, took down the original platform, lowered the “horses” three or four feet, and reconstructed the scaffolding upon the same general plan as that which had previously been in use, except that in placing the planks for the platform one of the 3x10 spruce planks was discarded (for what reason does not appear), so that the platform on which Holloway and his fellow employés resumed work a little before 1 o’clock of that afternoon was only 20 inches wide, one-half of that space being 3 inches thick, and the other half, made of the two 2x10 planks placed on top of each other, being 4 inches thick, so that under the defendant’s theory the tendency would be to throw all of the weight upon one of these plank sections, for the surface would be too uneven to afford a firm footing for men who were engaged in a bracing lift, such as is described in the evidence, if the weight was distributed over the two sections. Indeed, the evidence is sufficient to support the finding of the jury that these four men, who had reconstructed this scaffolding, and who had voluntarily discarded one of the 3x10 planks, were all standing upon this one 3x10 plank, engaged in forcing the heavy pine planks into position to be spiked when the accident occurred. The evidence was not disputed that the plank was in good condition; that it showed no defects ; and the testimony shows that a similar planlc, in no respect superior to the one which broke, sustained the weight of eight men as heavy as those upon the platform, with an equal distance between the supports. The evidence is practically irresistible that, had the strain been applied to the two 3x10 planks originally in the scaffolding, or had the plaintiff’s intestate and his fellow employés been using the contrivance of chain and bar, the accident could not have occurred. The question of the absence of contributory negligence on the part of Holloway was thus clearly for the jury to determine. He not only made use of the scaffolding with a full opportunity to know of its defects, but he actually took part in its construction, and acquiesced in the discarding of one of •the planks which the master had provided, and which he had evidenced as necessary .to the safety of the structure by originally using. McLaughlin v. Eidlitz, 50 App. Div. 518 , 522, 64 N. Y. Supp. 193 .

But the plaintiff’s theory is that under the provision of section 18 of the Labor Law, which provides for scaffolds that “are so constructed, placed and operated, as to give proper protection to the life and limb of persons so employed or engaged,” it was the duty of the master to superintend and direct the removal and reconstruction of the scaffolding, so that it should remain absolutely safe under all circumstances; that the master should assume this burden even as against the negligence of the plaintiff’s intestate; and this is the controlling idea in all of the ex

The evidence of men who had had long experience in the construction of similar scaffolds, and who were familiar with the relative strength of timber, was overwhelming that the materials furnished were proper, and that the scaffold furnished by the defendant was safe and proper for the work then under way when performed in the usual and approved way; and, unless there was an absolute duty on the part of the master to provide a platform which would stand a four-fold strain, the jury could not properly have reached any other conclusion than the one which we are now asked to reverse because of the alleged errors in the charge of the learned trial justice in acquiescing in the defendant’s numerous requests to charge.

It has been held that:

“While the statute does not make the master a guarantor of the safety of thé scaffold, yet the construction of it is his personal duty, as distinguished from the duty of the servant; and that the master is bound to use reasonable care to see that the scaffold furnished is not unsafe, but is safe and proper for the use for which it is intended; and that he cannot delegate that duty to another and relieve himself from responsibility merely by reason of the fact that he has selected a person of approved skill and fitness, and has furnished him with the material with which to do the work; but that, al

though that has been done, yet, If the scaffold, is not suitable or safe or proper, the negligence, if any, in so building it is the negligence of the master.” Stewart v. Ferguson, 52 App. Div. 317 , 319, 65 N. Y. Supp. 149 , 151.

But it is nowhere suggested, with authority, that the master’s duty in this respect is so absolute as to entitle one who has participated in the negligence resulting in the injury to recover in spite of that fact (see McLaughlin v. Eidlitz, 50 App. Div. 522 , 64 N. Y. Supp. 193 ), and, unless this doctrine can be sustained under the provisions of section 19 of the Labor Law, there is no reason why the plaintiff should complain at the instructions which were given the jury in this case, for the learned trial justice, at the request of plaintiff, arid at the close of defendant’s request which had been charged, placed the matter in as favorable a light as there was any possible justification for in the statute. Plaintiff’s attorney said: “I have one request. I think you have already covered them in your main charge, namely, that the deceased had a right to rely upon the fact that the master was bound under the statute to furnish him an absolutely safe and proper place.” To this the court responded, “I said so in so many words.” This was certainly stating the law too strongly, for, as we have already suggested, in the light of authority the duty of the master is to use reasonable care to furnish a safe and proper place, not to furnish an absolutely safe and proper place, to be determined after the happening of the accident.

The first of the alleged errors in the' charge of the court relates to the sixth request to charge. This request was that:

“If the jury is satisfied from all the evidence that the defendant furnished to the decedent and his fellow servants for the performance off their labor in working at the place of the accident safe, suitable, and proper materials and scaffolding for their use in the performance of their work, that then, and in that event, plaintiff cannot recover, and the defendant is entitled to a verdict.”

To this the court responded: “That I charge. That brings in the word ‘scaffolding.’ ” The plaintiff excepted, and now urges that “the. charge eliminated all questions of operation, destroyed the benefit of the presumption that the plank broke because of too great weight in the center, and took away from the consideration of the jury the question whether the scaffold was so constructed as to bear 2,400 pounds, or four times the weight of the four meh, the statutory criterion as to the strength of the scaffold, and limited the master’s duty to the mere furnishing of safe, proper, and suitable materials.” As we have already pointed out, there is no statutory criterion of strength prescribed for the scaffolds referred to in section 18 of the Labor Law, and the request to charge not only specified the materials, but the scaffolding, and there is no reason for believing, in view of the qualifying remark of the court, that the jury were left with the impression that “scaffolding” meant only the materials for building the scaffold. . The language of. the statute is, “shall'not furnish or erect, or cause to be furnished or erected, for the performance of such labor, scaffolding,” etc., “which are unsafe, unsuitable or improper.” The main charge had dealt very fully with this question, so that when the court suggested that this request included scaffolding it is very clear that the jury did not have reason to believe that there was any modification of the previous very clear statement of the law in reference to this question.

The remaining criticisms of the requests to charge are all based upon equally forced constructions, or upon the theory that the master was in duty bound to provide a scaffolding which was capable of withstanding a fourfold strain, instead of being merely liable for a failure to exercise reasonable care to provide a safe scaffolding. I am clear that the plaintiff’s theory is wrong, and that the charge as finally completed to the jury was a correct statement of the law of this case, in so far as any rights of the plaintiff are involved; and the" defendant does not raise any questions.

The exceptions to the reception of evidence were not well taken. The plaintiff had the advantage of the same class of evidence as that which he sought to have rejected, and under the authorities we see no reason why the testimony was not proper. Men who had had long experience in the construction of similar scaffolding, who were familiar with the timber used, and who knew its relative strength, were entitled to testify as to their opinions of the safety of a scaffolding constructed in the manner set out in the evidence. Jenks v. Thompson, 83 App Div. 343 , 345, 82 N. Y. Supp. 274 ; s. c. 179 N. Y. 20 , 71 N. E. 266 .

The judgment and order appealed from should be affirmed, with costs.