Osborne v. Salvation Army

• Decision Date: 13 November 1939
• Docket Number: No. 32.,32.
• Citation: 107 F.2d 929
• Parties: OSBORNE v. SALVATION ARMY.
• Court: U.S. Court of Appeals — Second Circuit

107 F.2d 929 (1939)

OSBORNE v. SALVATION ARMY.

No. 32.

Circuit Court of Appeals, Second Circuit.

November 13, 1939.

Sidney Schiffman, of New York City (Arthur Hutter, of New York City, of counsel), for plaintiff-appellant.

Cadwalader, Wickersham & Taft, of New York City (Walbridge S. Taft, Jacquelin A. Swords, and Donald H. Larmee, all of New York City, of counsel), for defendant-appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

In October, 1937, the defendant, The Salvation Army, was the owner of a building at 535 West 48th Street, in New York City, and there conducted a home for unemployed and destitute men where they were furnished with board and lodging. The men were not required to pay anything but were required to perform work that might be assigned to them in the nature of housecleaning in the building in which they were living. The purpose of this is said to have been "to maintain the morale, self-reliance and self-respect of the men" and to enable the defendant to distribute its "charity over the largest possible area and take care of the largest number" (fol. 261).

On October 28, 1927, the plaintiff, being out of work, applied for admission to the Home and was given board and lodging. The next day, October 29, he was assigned to the job of washing four windows on the second floor of the building. He proceeded to undertake this work, for which he appears to have lacked experience, and while standing on the window-sill outside of one of the windows, which faced the street, fell to the sidewalk and sustained injuries. In the course of the trial he testified that he was obliged to raise the window from the bottom in order to wash the lower half and that it stuck as he lifted it up and caused him to lose his balance and fall. It appeared without contradiction that he was given no safety belt for use in this work and that there were no hooks attached to the building or other safety devices to prevent window-cleaners from falling. He brought this action against The Salvation Army to recover damages said to have resulted from the failure of the defendant to comply with the statutory duty to have the window equipped with safety appliances and the plaintiff supplied with a safety appliance and safety belt to prevent his fall. The action was tried to a jury. From a judgment entered on a verdict for the defendant the plaintiff has appealed. We hold that the judgment should be reversed.

The statute relied on to sustain plaintiff's cause of action is Section 202 of the Labor Law of the State of New York (Consol.Laws, c. 31), as amended in 1937 (chapter 84, § 2), which reads as follows:

"§ 202. Protection of persons engaged at window cleaning. On every public building where the windows are cleaned from the outside, the owner, lessee, agent, manager or superintendent in charge of such building shall provide, equip and maintain approved safety devices on all windows of such building. The owner, lessee, agent, manager or superintendent in charge of any such public building shall not require, permit, suffer or allow any window in such building to be cleaned from the outside unless means are provided to enable such work to be done in a safe manner in conformity with the requirements of this chapter and the rules of the industrial board. Every employer or contractor shall require his employee while engaged in cleaning any window of a public building from the outside, to use the equipment and safety devices required by this chapter and the rules of the industrial board. No person shall clean any window of a public building from the outside unless the equipment and safety devices required by this chapter and the rules of the industrial board are provided for his protection and used by him while engaged at cleaning such window.

"The industrial board may make rules supplemental to this section by designating safety devices of an approved type and strength to be installed on public buildings or to be worn by window cleaners or both, but the absence of any such rules shall not relieve any person from the responsibility placed upon him by this section."

It is not disputed that the building in which the plaintiff worked was a "public building" as that term is defined in the New York Labor Law and used in Section 202 above quoted, nor is it questioned that there was an absence of any safety appliances for the protection of the plaintiff.

The defenses relied on are: (1) that the plaintiff was not an employee of the defendant, but a mere recipient of its bounty and therefore was not one of the class to which the statute afforded protection, (2) that he assumed the obvious risks incident to his employment and likewise was guilty of contributory negligence.

In respect to the first defense, there is much reason for saying that a man who was given board and lodging upon the understanding that he would do work about the building, which might be assigned to him, was "working for another for hire" and hence when he performed services for the defendant became an employee, as defined by Section 2(5) of the Labor Law. But the statute would seem to apply even if he was not "working for hire."

Section 202 provides that: "On every public building where the windows are cleaned from the outside, the owner * * * shall provide, equip and maintain approved safety devices on all windows of such building." It goes on to say that: "The owner * * * shall not require, permit, suffer or allow any window in such building to be cleaned from the outside unless means are provided to enable such work to be done in a safe manner" and concludes with the provision that: "No person shall clean any window of a public building from the outside unless the equipment and safety devices required * * * are provided for his protection and used by him while engaged at cleaning such window." In spite of the fact that the Labor Act in general deals with matters arising out of the relation of master and servant, Section 202 in terms embraces all window-cleaners, whether employees of the "owner, lessee, agent, manager or superintendent" in charge of a building or not and has not been construed by the courts as limited to employees of the person charged with liability but has been treated as covering any person cleaning windows of a public building from the outside. Teller v. Prospect Heights Hospital, 280 N.Y. 456, 458, 21 N.E.2d 504; Homin v. Cleveland & Whitehill Corp., 256 App. Div. 187, 9 N.Y.S.2d 454; See also Karpeles v. Heine, 227 N.Y. 74, 124 N.E. 101, where a similar point was involved in construing another section of the Labor Law. Moreover, it seems quite unlikely that a laborer, even if not technically hired to clean windows, should not have the protection of safety devices, when we consider the purposes and broad language of the statute. We think that the plaintiff was within the class for whose protection Section 202 of the Labor Law was enacted and was entitled to a verdict in his favor unless the defendant had a defense of assumption of risk or contributory negligence. The better reasoned decisions have held that assumption of risk and contributory negligence, which the trial judge allowed to go to the jury, are not valid defenses in cases where the violation of a statute enacted for the benefit of a class of which the plaintiff is a member is involved. If the plaintiff's injuries arose from the violation, defendant's liability was absolute irrespective of any proof of negligence. Schmidt v. Merchants Despatch Trans. Co., 270 N.Y. 287, 304, 306, 200 N.E. 824, 104 A.L.R. 450; Kindga v. Charles F. Noyes Co., Inc., 260 N.Y. 521, 184 N.E. 76; Karpeles v. Heine, 227 N.Y. 74, 79, 124 N.E. 101; Amberg v. Kinley, 214 N. Y. 531, 535, 108 N.E. 830, L.R.A.1915E, 519; Fitzwater v. Warren, 206 N.Y. 355, 99 N.E. 1042, 42 L.R.A.,N.S., 1229; Watkins v. Naval Colliery Co., (1912) A.C. 693, 703.

It is the general rule that a plaintiff may not waive a statute enacted for his protection and that he cannot do so because of assumption of risk is clear. To bar recovery in an action brought under the statute because the plaintiff's acts contributed to his injuries would seem to render its enforcement entirely ineffective. There is no practical difference in such cases between the defense of assumption of risk and that of contributory negligence. Such is the effect of the decisions of the New York Courts in Teller v. Prospect Heights Hospital, 255 App.Div....