Madden v. Hughes

• Decision Date: 19 June 1906
• Parties: MADDEN v. HUGHES et al.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 466

78 N.E. 167

MADDEN

v.HUGHES et al.

Court of Appeals of New York.

June 19, 1906.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James Madden against James Hughes and others. From an order of the Appellate Division (93 N. Y. Supp. 324,104 App. Div. 101), unanimously affirming a judgment entered on a verdict in favor of plaintiff and denying a new trial, defendants appeal. Affirmed.

Edward W. Norris, for appellants.

Frederick S. Martyn, for respondent.

HAIGHT, J.

This action was brought to recover damages for injuries sustained by the plaintiff on the 25th day of January, 1902, while in the employ of the defendants. At the time of the accident he was engaged in putting a beam in one of the pockets of a scow which the defendants were repairing. The scow was divided into different pockets, each of which was 28 feet wide across the top and 13 feet in length from bulkhead to bulkhead. The sides of the pocket sloped diagonally from the top of the scow towards the center at the bottom. In order to facilitate the placing of the beam in position near the top of the pockets, a scaffold was constructed out of two 3-inch planks, which were spliced by being nailed together and supported at either end by a rope looped around the plank and then fastened to the bulkhead. While the plaintiff was standing upon this scaffold putting the beam into position, the plank broke, causing him to fall to the bottom of the pocket, about 8 feet below, causing the injuries for which he seeks to recover damages in this action. The trial resulted in a verdict for the plaintiff, and the judgment entered thereon has been unanimously affirmed by the Appellate Division.

It is now contended, on behalf of the defendants, that a scow, such as that upon which the plaintiff was engaged at the time of his injury, was not a ‘structure’ within the meaning of section 18 of the labor law (Laws 1897, p. 467, c. 415), and that the scaffold upon which he was at work was not such a scaffold as was contemplated by the provisions of that act. We have examined the record, but fail to find any exception that raises either of these questions. At the conclusion of the plaintiff's evidence the defendants moved for a dismissal of the complaint upon the grounds that the plaintiff had failed to show negligence on the part of the defendants, or his freedom from contributory negligence. But neither by motion nor request to charge does it appear that the court was requested to hold that the scow was not a ‘structure’ within the meaning of the statute, or that the ‘scaffold’ was not one contemplated by its provisions. We therefore think that neither of these questions argued in this court are presented by the record. The case appears to have been defended upon the theory of contributory negligence on the part of the plaintiff. That issue was submitted to the jury, and the verdict found thereon has, as we have seen, been unanimously affirmed, which, under the provisions of the Constitution, precludes this court from the consideration of the question as to whether there was evidence sufficient to sustain the verdict upon that issue.

Our attention has been called to two exceptions taken to the charge of the court. The first is as follows: ‘Now, about the only question outside of the plaintiff's own negligence is, was the defendant negligent in furnishing and supplying the plaintiff with a scaffold which was unsafe and improper and unsuitable, and did not afford protection to life or limb? The defendants are absolutely commanded by the statute to supply workmen with this sort of apparatus; it is their duty to do it. They have no excuses to offer, and there are none which they can invoke.’ It may be that, under a strict grammatical construction of the charge, ‘this sort of apparatus' would refer to the unsafe and improper scaffold referred to in the sentence preceding. But, of course, this is not what the judge intended. The...