151 N.Y. 417, Kimmer v. Weber

Citation:151 N.Y. 417
Party Name:JACOB KIMMER, as Administrator of WILLIAM KIMMER, Deceased, v. JOHN WEBER et al., Copartners, etc., Appellants.
Case Date:January 19, 1897
Court:New York Court of Appeals

Page 417

151 N.Y. 417

JACOB KIMMER, as Administrator of WILLIAM KIMMER, Deceased,


JOHN WEBER et al., Copartners, etc., Appellants.

New York Court of Appeal

January 19, 1897

Argued December 11, 1896.

Page 418


Hamilton Wallis for appellants. The motion for a dismissal of the complaint should have been granted, as it appeared by the plaintiff's testimony that the defendants were in no wise negligent, and that the accident was to be attributed directly to the negligence of the fellow-servants of the deceased. ( Hussey v. Coger, 112 N.Y. 618; Davidson v. Cornell, 132 N.Y. 228; McCampbell v. C. S. Co., 144 N.Y. 552; Dobbins v. Brown, 119 N.Y. 188; Cosulich v. S. O. Co., 122 N.Y. 118; Borden v. D., L. & W. R. R. Co., 131 N.Y. 671.) The foreman, Turner, was not the defendants' representative,

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and they are not liable for his negligence. ( Hussey v. Coger, 112 N.Y. 620; Cullen v. Norton, 126 N.Y. 1; Hankins v. N.Y. L. E. & W. R. R. Co., 142 N.Y. 416; Hogan v. Smith, 125 N.Y. 774; Butler v. Townsend, 126 N.Y. 105; Loughlin v. State, 105 N.Y. 159.)

E. B. Barnum for respondent. The motion for a nonsuit was properly denied. ( Pantzar v. T. F. I. M. Co., 99 N.Y. 368; McGovern v. C. V. R. R. Co., 123 N.Y. 280; Hankins v. N.Y. L. E. & W. R. R. Co., 142 N.Y. 416; Bailey v. R., W. & O. R. R. Co., 139 N.Y. 302.)


The plaintiff's intestate was an apprentice in the employ of the defendants, who were builders. This young man was killed on the 16th of February, 1891, by the falling of a scaffold used by the defendants' workmen in their business. The question was whether the accident was the result of negligence on the part of the defendants. The jury found that it was, and the inquiry is whether the proofs in the case sustain the finding. The defendants had a contract for the mason work of a brewery, which was in process of erection. There was also a gang of carpenters and a gang of plumbers at work upon the building, each under separate contracts with the owner. The plumbers engaged in fastening pipes upon the ceilings of the different floors made use of a scaffolding which had been constructed for them by one of the carpenters. It was first used in the cellar, then removed to the first floor and used for the same purpose, and then taken down and removed to the floor above. The ceiling of this floor being higher than the others, the plumbers found it necessary to raise the height of the scaffolding. They procured the same carpenter to make the change. This was done by extending the uprights by means of pieces of timber nailed to them and fastened by cleats. It seems in that form to have answered all the purposes of the plumbers. It consisted of three planks supported on crosspieces fastened to the uprights, and was left by the plumbers in the room when they had completed

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their work. Neither the defendants nor any of their employees had anything whatever to do with the construction or use of the scaffolding...

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