Kirby v. Montgomery Bros. & Co.

• Decision Date: 07 December 1909
• Court: New York Court of Appeals Court of Appeals
• Parties: KIRBY v. MONTGOMERY BROS. & CO.

197 N.Y. 27

90 N.E. 52

KIRBY

v.MONTGOMERY BROS. & CO.

Court of Appeals of New York.

Dec. 7, 1909.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by John Kirby against Montgomery Bros. & Co. From a judgment of the Appellate Division overrulling plaintiff's exceptions and directing judgment dismissing the complaint on a nonsuit, granted at the Trial Term (126 App. Div. 922,111 N. Y. Supp. 1127), plaintiff appeals. Reversed.Frederick G. Bagley, for appellant.

Clinton B. Gibbs, for respondent.

VANN, J.

The plaintiff, while in the employ of the defendant as a common laborer in its lumber yard in the city of Buffalo, alleges that he was seriously injured by the negligence of his master in failing to furnish him a safe place in which to work. The accident occurred in a shed belonging to the defendant used to store lumber for the purpose of selling it at retail. This building was 125 feet long, with a plank driveway in the center, through which delivery wagons were driven in and out. Lumber was stored on either side of the driveway, and about 12 feet above on either side of the space over the driveway were galleries in which lumber was piled in racks. Between the galleries and over the driveway was an open space 9 feet 5 inches wide, used to pass lumber from the galleries down to the wagons below. At one end of this open space a platform composed fo planks had been erected, and on the platform a structure called an office extended out a distance of 4 feet and 1 inch. The platform extended 18 inches beyond the office and this part thereof was used, without a railing, as a walk to cross over from one gallery to the other. Attached to the side of the office and 4 feet 11 inches above the walk was a switch-box, 16 inches high, 23 inches long and 6 3/4 inches wide, which projected over the walk the distance of its width. The planks of the platform, originally 2 inches thick, but by use worn somewhat thinner, were securely nailed at either end.

For a month before the occasion in question two pine boards, each 5 3/4 inches wide and 7/8 of an inch thick, had laid one above the other close up to the platform, with both ends unfastened. The combined carrying capacity of these boards, planed, grooved, and beaded as they were, when so placed, with both ends supported, but not fastened, across a space 9 feet 5 inches wide, was 75 pounds. They had been recently planed and were light in color, while the planks were dark. The apparent effect of the boards, thus placed one on top of the other as close to the platform as they could be, was to widen the walk from 18 inches to 23 3/4 inches. The situation, as thus described, was well known to the defendant's general superintendent, who was there several times every day. The plaintiff had been ordered by him, when he had nothing else to do, to go up in the galleries and tie up siding. He had been in the employment of the defendant for about three months and had been up in the galleries ‘a couple of times,’ but he did not know that the boards were not fastened at the ends, nor that they were unsafe and not intended to form part of the platform.

On the occasion in question the plaintiff started to go to work in the galleries, reached the platform by a ladder which was the only means provided, and began to walk across to the other side where his duties called him. Proceeding by the narrow walk, when he reached the switch box, he intentionally stepped with his left foot on the boards, laid one above the other close to the platform, but they tipped, both broke, and he...