Stewart v. Ferguson

• Citation: 164 N.Y. 553,58 N.E. 662
• Parties: STEWART v. FERGUSON.
• Decision Date: 20 November 1900
• Court: New York Court of Appeals

164 N.Y. 553

58 N.E. 662

STEWART

v.FERGUSON.

Court of Appeals of New York.

Nov. 20, 1900.

Appeal from supreme court, appellate division, First department.

Action by Thomas C. Stewart, administrator, against John W. Ferguson. From a judgment of the appellate division affirming a judgment in favor of the plaintiff (65 N. Y. Supp. 149), defendant appeals. Affirmed.

The action was brought to recover damages for alleged negligence causing the death of Andrew C. Stewart, the plaintiff's intestate, on November 23, 1897. Stewart was in the employ of defendant, and, while engaged in laying brick in the wall of a building which the defendant was erecting in Long Island City, the scaffold upon which he was standing, which the defendant had caused to be erected for the purpose, fell, and caused his death.

John V. Bouvier, J., for appellant.

Edward P. Lyon, for respondent.

LANDON, J. (after stating the facts).

The only question of law presented for our review by the exceptions arises upon the refusal of the trial court to charge as requested by the defendant. There was evidence tending to show how the scaffold was constructed, but not tending to show any particular structural weakness. There was no evidence tending to prove the cause of the fall of the scaffold other than the fall itself. The trial court instructed the jury that the falling of the scaffold raised a presumption of the negligence of the defendant in its construction, and he refused to charge that the happening of the accident created no presumption of negligence on the part of the defendant. The charge was not excepted to, but the refusal was; but both charge and refusal may be considered, because the charge made the refusal more pointed and impressive. Before the passage of the labor law (chapter 415, Laws 1897) it had been held that the falling of a scaffold without any apparent cause was prima facie evidence of negligence on the part of the person bound to provide it. Green v. Banta, 48 N. Y. Super. Ct. 156, affirmed in 97 N. Y. 627;Solarz v. Railway Co., 8 Misc. Rep. 656,29 N. Y. Supp. 1123, affirmed on appeal 11 Misc. Rep. 715,23 N. Y. Supp. 1149, and 155 N. Y. 645, 49 N. E. 1104. These cases proceeded upon the theory that, if the scaffold had been properly constructed, in the absence of other ascertained cause of its fall, negligence in its construction or maintenance might be presumed. In Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017, the negligent act which caused the fall of the scaffold was ascertained, and the question in controversy was whether it was the negligence of the master or of his servants. The court held that the scaffold was not a place in which to perform labor, but an appliance for use in its performance, and therefore the master's duty was that which he owed his servants in respect of appliances, and not of places; and that his duty to his servants was performed in respect of the scaffold by furnishing proper materials for its construction, and competent workmen to construct it; and that he could commit the details of its construction to such servants; and that their negligence in the execution of these details resulting in an injury to a fellow servant was not the master's negligence. In Kimmer v. Weber, 151 N. Y. 417, 45 N. E. 860, a scaffold fell, and the same rule was applied. Assuming the law to be as stated in the two classes of cases, the case before us falls within the class in which no other cause of the fall of the scaffold was ascertained except as inferred from the fall itself, and not within the class in which it was otherwise ascertained. But, if within the latter class, then we think sections 18 and 19 of the labor law enlarge the duty of the master or employer, and extend it to responsibility for the safety of the scaffold...