Kimmer v. Weber

• Decision Date: 19 January 1897
• Citation: 151 N.Y. 417,45 N.E. 860
• Parties: KIMMER v. WEBER et al.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 417

45 N.E. 860

KIMMER

v.WEBER et al.

Court of Appeals of New York.

Jan. 19, 1897.

Appeal from supreme court, general term, First department.

Action by Jacob Kimmer, administrator, against John Weber and others. From a judgment of the appellate division (30 N. Y. Supp. 1103) affirming a judgment for plaintiff, defendants appeal. Reversed.

Gray, J., dissenting.

Hamilton Wallis, for appellants.

E. B. Barnum, for respondent.

O'BRIEN, J.

The plaintiff's intereste was an apprentice in the employ of the defendants, who were builders. This young man was killed on the 16th of February, 189§, 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 semms, 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 their work. Neither the defendants nor any of their employés had anything whatever to do with the construction or use of the scaffolding. About two weeks before the accident the defendants sent a gang of masons to the building, of which the deceased was one, to point up the arches of the ceiling. The defendants' foreman gave the men instructions to make a scaffolding for themselves, with three horses furnished by defendants, by placing planks on two of them, and using the third to extend the scaffold as they passed around the room. The place furnished to the masons to do the work was, in a general sense, the room or second floor of the building, and it is not claimed that this place was in any sense unsafe. The erection of the scaffolding was a detail of the work which, it is apparent, devolved upon the workmen themselves, as they needed it to move around the room. It is not claimed that the defendants failed to provide proper material for the construction of such a scaffolding. The workmen, of whom the deceased was one, constructed the scaffold according to their own judgment. They used this plumbers' scaffold for one side of it, and placed a structure against the wall for the other side. From this structure to the plumbers' scaffold crosspieces were placed, upon which planks rested to accommodate the workmen. The scaffolding thus constructed was used for about two weeks, and moved about the room as occasion required, all of which seems to have been done by the workmen themselves. The crosspieces, or some of them, seem to have been heavy pieces of timber, and on the day of the accident two of the workmen were engaged in putting one of these timbers in place. While so engaged one of the men let fall the end of the heavy timber that he was holding, and it crushed by its sudden fall, and broke, one of the crosspieces of the plumbers' scaffold. This caused the whole scaffold to fall, resulting in the injury and death of the plaintiff's intestate.

The accident was evidently caused by the neglect of the workmen who were handling the timber, or by some defect in the crosspiece of the plumbers' scaffold. It the accident is to be attributed to the act of the workmen who were engaged in putting the timber in place, there is nothing in the case to show that the defendants are liable for the misconduct. They were co-servants, and nothing appears to charge the defendants with negligence, either in employing them originally or in retaining them. It is not suggested that the judgment can be upheld on such grounds. The judgment must stand, if at all, upon the fact that the plumbers' scaffold was used as a part of the scaffolding for the masons, and that it was insufficient. When the case is examined in that light, it will be found, we think, that there was no proof of negligence on the part of the defendants to warrant the submission of the question to the jury. It does not appear that the defendants constructed the plumbers' scaffold or furnished it, or directed the workmen to use it. On the contrary, it appears that this scaffold was a contrivance adopted by the workmen themselves. It does not appear that they were obliged to use it. When a gang of masons are engaged in plastering or pointing a room, the construction of...