Guggenheim Smelting Co. v. Flanigan

• Decision Date: 17 January 1899
• Citation: 62 N.J.L. 354,42 A. 145
• Parties: GUGGENHEIM SMELTING CO. v. FLANIGAN.
• Court: New Jersey Supreme Court

42 A. 145

62 N.J.L. 354

GUGGENHEIM SMELTING CO.

v. FLANIGAN.

Court of Errors and Appeals of New Jersey.

Jan. 17, 1899.

Dissenting opinion. For majority report, see 41 Atl. 844.

ADAMS, J. I find no error, and so shall vote to affirm the judgment. The suit was brought by a workman against his employer. The ground of action alleged in the declaration is the employer's failure to exercise reasonable care to provide the plaintiff with a ladder safe for use in his work. The plaintiff in error, who was the defendant below, insists that the trial judge erred in refusing to nonsuit, and to direct a verdict for the defendant, and in his charge.

It is said that the refusal to nonsuit was erroneous, because the ladder used by the plaintiff was obviously unfit for his purpose, and that, if a master supplies proper appliances, he is not liable for an injury that his servant receives because he selects from such appliances one not adapted safely to his work. Here are two propositions,—one of fact, and one of law. The proposition of law may be admitted, if by the words "not adapted safely to his work" is meant obviously unfit for or ill-adapted to his work. Maher v. Thropp, 59 N. J. Law, 186, 35 Atl. 1057. The proposition of fact is a deduction from the evidence, and is not sound, unless the unfitness of the ladder was manifest when the plaintiff rested his case. In my view, there was no such manifestation. The evidence showed that on May 14, 1895, the plaintiff, a man 54 years old, was in the employ of the defendant, whose smelting works were under construction. He was a laborer, and was helping a Mr. Barrett, a steam fitter, to fit pipes in the boilers and elsewhere, and had worked at that job for a mouth or more. For about a week the plaintiff had been engaged with Mr. Barrett in the boiler room, where the masons had built a brick wall, which was still fresh. There were ladders in use about the works. The plaintiff said, on cross-examination, "Plenty of ladders; I could not tell you how many." One of them was 26 feet long, with rungs inserted in holes bored in the side pieces. The plaintiff spoke of this as "a good ladder,"—"a good, long ladder." Peter Nolan, a laborer employed in helping the steam fitter, described it as "one of those ladders that the rungs were bored and mortised and wedged, —a good, strong ladder, the same as painters use." It did not appear in the plaintiff's case where this ladder was made. So far as that case showed, there was only one ladder of this kind, or, at least, only one ladder as good as this one. Nolan said, on cross-examination, "To tell the truth, I saw only one good, strong ladder while I was there." A number of ladders, just how many did not appear, were made in the carpenter shop on the premises for the use of the masons, and were used by the masons, by workmen who put up the dynamo engines, and by other employés. These ladders were shorter than the 26-foot ladder, and had side pieces of scantling, with strips nailed across for rungs. Up to three days before the accident the 26-foot ladder was in use by Mr. Barrett, and by his helpers, Flanigan and Nolan, in the boiler room. On Saturday. May 11th, some one took the 26-foot ladder away from the boiler room to another room, where men were lining retorts with fire brick, leaving in its place one of the shorter and rougher scantling ladders. This ladder had been made in the carpenter shop, a few days before the accident, of new spruce stuff, and when in position in the boiler room reached to within from 6 to 10 inches of the top of the wall that the masons had just built. Nolan said of this ladder: "It was a scantling ladder. It was made of spruce scantling." His testimony then proceeded as follows: "Q. What size? A. I could not tell you whether the rungs were inch stuff or one and one-half inches. Q. Were the rungs inserted in bored holes, or simply nailed on? A. Simply nailed on, the same as a mason has for a ladder. Q. Do you know anything about where this ladder was made? A. It was made in the carpenter shop. Q. There at the smelting works? A. Yes, sir; there were several made there for the masons. Q. How do you know that? A. Before I helped William Barrett I carried orders from the carpenter shop, and I think a couple of ladders over from there that was made there. Q. And this was one of the ladders? A. This was one of the ladders that was made there. Q. You do not mean that it was one that you carried? A. No; but that kind. Q. It was made for the use of the masons? A. Yes, sir. Q. Did the carpenters use it themselves? A. No; I didn't see the carpenters use those ladders at all. I saw them rig a scaffold for their own use." The accident happened in the afternoon of Tuesday, May 14th. Mr. Barrett was fixing steam pipes on top of the boiler, while Flanigan and Nolan were assisting him, and going on errands for him,—as the plaintiff said, "helping carry pipes, and helping screw them on and screw them off, and taking them to the blacksmith. shop, and such things." The plaintiff thus had frequent occasion to go up and down the ladder—as often as 20 or 30 times a day. At about 3 o'clock Mr. Barrett sent the plaintiff to the carpenter shop for a chisel. He was returning with it in his hand, and had nearly reached the top of the ladder, when he fell and was injured. That part of the plaintiff's case which relates to the manner of the accident is found in the testimony of himself and of Nolan. The plaintiff's evidence was that, as his foot was on the second cross piece from the top, 16 feet above the ground, and as his shoulders were about level with the top of the boiler, the cross piece split near its left end, swung down, and hung by its right end. The plaintiff lost his balance, and caught at the top of the wall to save himself. A brick came away under his grasp, and he fell, leaving the ladder standing. The plaintiff was not asked, either on direct or cross examination, to account for the breaking of the cross piece. Nolan testified that there was a knot in the cross piece near a nail, and that the cross piece broke right by the knot. The jury, no doubt, attributed the breakage to this knot.

These being the facts, it is said that the trial judge should have nonsuited the plaintiff, because the ladder was so obviously unfit for and ill-adapted to his work that it was negligence for him to use it. In answer to the inquiry wherein the unfitness and want of adaptation is supposed to consist, a single particular only is specified. It is said that the ladder was too short, and that the plaintiff should have anticipated that, when he got to or near the top of it, he might slip, or make a misstep, or that something might break by reason of a latent defect, and throw him from his position, so that he would be without any means of saving himself, except by grasping the green wall, which could furnish him no safe support in this view, it is of no consequence that the ladder was a scantling ladder. The reasoning is equally applicable to any ladder of the same length. It is true that, if the ladder had been longer, the plaintiff might perhaps have saved himself. But this is aside from the point. The questions arising out of the shortness of the ladder are these: Was the ladder, under all the circumstances, reasonably well adapted to the use to which it was put? Was it manifest negligence for the plaintiff not to apprehend the breakage of an appliance that he apparently had no occasion to distrust, and not to view with concern the gymnastic feat of getting on the top of a wall from a ladder a few inches below it? I think that the opinion in which this conclusion is reached places the standard of physical activity too low. An able-bodied workman, who was sure of his ladder, would not find this situation difficult, and ought not to be thrown out of court because he did not foresee that which, so far as appears, he had no reason to expect. If, out of these facts, any imputation of contributory negligence could fairly arise, there was, at least, enough doubt about the matter to make it a question for the jury.

The...