Steel & Masonry Contracting Co. v. Reilly

• Decision Date: 09 December 1913
• Docket Number: 14.
• Citation: 210 F. 437
• Parties: STEEL & MASONRY CONTRACTING CO. v. REILLY.
• Court: U.S. Court of Appeals — Second Circuit

210 F. 437

STEEL & MASONRY CONTRACTING CO. v. REILLY.

No. 14.

United States Court of Appeals, Second Circuit.

December 9, 1913

Amos H Stephens, of New York City (Frank Verner Johnson and William B. Davis, both of New York City, of counsel), for plaintiff in error.

Ralph Gillette and Bertrand L. Pettigrew, both of New York City for defendant in error.

Before COXE, WARD, and ROGERS, Circuit Judges.

COXE Circuit Judge.

The plaintiff's intestate was killed by a fall from the iron framework while engaged in constructing the grand stand at the Polo Grounds in the City of New York. He was in charge of a gang of men engaged in putting into position the purlins which are iron beams extending from truss to truss. Planking had been laid on this ironwork for the purpose of receiving the purlins, which were being brought up in slings. The roof of the grand stand slopes downward from the front to the rear, the grade being 1 1/2 inches to a foot. A plank between 14 and 18 feet in length, 12 inches wide and 3 inches thick had been laid diagonally upon the trusses to enable the workmen to cross the space between the purlins and also to stand upon it while landing the draughts of purlins as they came up from below. As Reilly stepped upon this plank it slid downward upon the slanting truss for a distance of about 2 feet, causing him to fall from 60 to 75 feet to his death. This fatal sliding was accelerated, if not actually caused by a spike that had been driven through the plank and bent over against the end so that at the point where the plank rested on the truss there was not a contact of wood with iron but of iron with iron. It cannot be seriously contended that such a structure was a safe one to provide for the use of the workmen at such an altitude. Indeed, the defendant's general foreman testified that with the bent spike resting on the slanting truss, the plank would have a tendency to slip. In answer to the direct question he said, 'No, I don't think it was safe. ' We have, then, a plank laid diagonally across the slanting trusses for supporting the workmen engaged in hoisting the purlins. This plank had an iron spike bent down on its under side at the point where the plank rested upon the truss.

The action is brought under section 18 of the New York Labor Law (Consol. Laws, c. 31) which, so far as it is necessary to consider it, is as follows:

'Scaffolding for use of Employees.-- A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.' This law, in language too plain to be misunderstood, commanded the defendant, during the erection of the grand stand in question, not to furnish or cause to be furnished for the performance of such labor, scaffolding which was unsafe, unsuitable or improper and which was not so constructed, placed and operated as to give proper protection to the life and limb of Reilly while lawfully using the same.

Two questions are thus presented: First, was the plank unsafe? Second, was it, when...