New York, N.H. & H.R. Co. v. Mooney

• Decision Date: 13 April 1915
• Docket Number: 240.
• Parties: NEW YORK, N.H. & H.R. CO. v. MOONEY.
• Court: U.S. Court of Appeals — Second Circuit

223 F. 626

NEW YORK, N.H. & H.R. CO. v. MOONEY.

No. 240.

United States Court of Appeals, Second Circuit.

April 13, 1915

J. M Gibbons, of New York City (J. W. Carpenter, of Brooklyn, of counsel), for plaintiff in error.

S. A Syme, of Mt. Vernon, N.Y., for defendant in error.

Before LACOMBE, WARD, and ROGERS, Circuit Judges.

LACOMBE Circuit Judge.

The temporary platform on which plaintiff was working consisted of a plank placed between two girders. This is substantially the same structure as that which was passed upon in our decision in Steel & M. Co. v. Reilly, 210 F. 437 127 C.C.A. 169 (December 9, 1913), where a plank was laid diagonally upon two trusses. That such a structure is 'scaffolding' within the meaning of the New York Labor Law was settled for this circuit, by that decision. In Ford Motor Co. v. Donaldson (November 10, 1914) (C.C.A.) 218 F. 350, we also held that the statute applied when the injured party builds or helps to build the scaffold. We said:

'We find nothing in the statute which supports the proposition contended for and supported by several Appellate Division decisions that the section does not apply when the injured party himself builds, or helps build, the scaffold. On the contrary, it seems to be the object of the act to make the master have scaffolds built by men competent to build them properly, not by the workman who is to use them-- quite frequently not himself an experienced carpenter.'

These decisions dispose of the main question in the case at bar. The story of the plaintiff, which under the verdict we must take to be correct on all matters in conflict, is that when he and his partner (coworker) were putting the plank in place, he told the foreman that the plank was too short and asked for a rope to tie it with. It was Saturday afternoon about an hour before the close of work for the day. That the foreman said there were no ropes there then-- such ropes as there were were in use by other men-- but that on Monday the foreman would have them there, and to do the best they could with the planks that were on hand. The evidence showed that sometimes these planks were lashed to what they rested on, which might prevent slipping or tilting; there was certainly sufficient to sustain a finding by the jury that the scaffolding erected for the performance of plaintiff's part of the work was 'unsafe, unsuitable or improper' and not so constructed and placed 'as to give proper...