
    Charles Kelly, Respondent, v. National Starch Company, Appellant.
    Fourth Department,
    January 11, 1911.
    Master and servant — negligence — fall from ladder — Labor Law — contributory negligence.
    Although the Labor Law requires a master engaged in the .erection of a building ■ to furnish ladders so constructed, placed and operated as to give proper protection to the life or limb of his employee, a servant who was injured by so placing a ladder fourteen feet long that it tipped sideways when he attempted to ascend it cannot recover if no part of the ladder was defective, for a master is not liable in damages for injuries to his employees resulting from the use of a. simple instrument. .
    Moreover, as the servant as he mounted could test the strength and solidity of the ladder, he was guilty of contributory negligence and assumed the 'risk of' using it if he found that it lacked sufficient rigidity. ■
    Kruse, J., dissented, with memorandum.
    
      Appeal by the defendant, the National .Starch Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 12th day of April, 1910, upon the verdict of á jury for $1,500, and' also from an order entered in said clerk’s office on the same day denying the' defendant’s motion for a new trial made upon the minutes.
    
      Elisha B. Powell, for the appellant.
    
      D. P. Morehouse, for the respondent.
   Williams, J.:

The judgment should be reversed and a new trial granted, with costs to appellant to abide event.

The action was for negligence. The plaintiff was an employee of defendant and was injured by falling from a ladder. It was claimed the sides of the ladder were not strong enough, and when plaintiff was going up it bent over sideways and he was thrown down and quite seriously injured. The ladder was thirteen or fourteen feet long and was being used to go up a distance of twelve feet.

The action was brought under the Labor Law (Gen. Laws, chap. 32; Laws of 1897, chap. 415 ; Consol. Laws, chap. 31; Laws of 1909, chap. 36). Section 18 provided : “A person empoying 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 liinb of a person so employed or engaged.”

There seems to be no question but that the labor being performed by plaintiff was in the erection, repairing or altering of a house, building or structure. The jury could very likely find that the ladder was unsafe, unsuitable and improper, and not so constructed as to give proper protection to life and limb, and under this statute the defendant, therefore, might be regarded as negligent. Under Cummings v. Kenny (97 App. Div. 114) there was an accident to a hodcarrier using a ladder in liis work. One of. the rounds broke and let him fall, and the action was for his injuries. There was á nonsuit, which was reversed in the Second Department, Appellate Division, Woodward, J., writing the opinion. The decision turned mainly upon the failure to show how the round came to break. The Appellate Division held, though the cause of the breaking was unexplained, still under section 18 of the Labor Law & prima, facie case was made out and a nonsuit was improper. . This is the only ladder case to which my attention has been called decided under the Labor Law. But in Hart v. Village of Clinton (115 App. Div. 761), where an employee fell from an extension ladder, we reversed a judgment in his favor, applying the principle that a master is not generally liable for injuries resulting from a simple appliance. Spring, J., said: The -plaintiff was a man of mature age. lie had been working for this defendant about four weeks. * * *

He was familiar with the use of the extension ladder. It was a simple contrivance. He knew as much about it and its use as Adam§. [the superintendent] did. ■ It is not claimed he needed to' be instructed. It has been repeatedly held that if injuries befall an employee from the use of a simple implement or contrivance of this kind the master is not liable.” - (Citing Marsh v. Chickering, 101 N. Y. 396, and other cases.)

In Smith v. Green Fuel Economizer Co. (123 App. Div. 672) an employee fell from a ladder upon a shaft, and the Second Department, Appellate Division, reversed the judgment in his favor, applying the same rule laid-down by Spring, J., above, and citing that case and the cases therein referred to. And in McMillan v. Minetto S. C. Co. (134 App. Div. 28) an injury to an employee resulted from a fall caused by a cleat upon a board working loose in its use. He could have observed the loosening of the cleat and have tightened it up. We reversed the judgment in his favor, Spring, J., saying : “ The implement he used was a simple contrivance, and the work he did with it was not complicated or difficult to comprehend. * * * We appreciate the rule .which requires the master to furnish suitable appliances for his servant. * * * It has, however, often been held that a master is not liable in damages for injuries to his employee resulting from the use of a simple implement.” (Citing 115 and 123 App. Div. supra.)

Marsh v. Chickering (101 N. Y. 396), cited and relied upon. for the• principle of a “simple appliance” in the foregoing cases, was a ladder case. The employee was using the ladder for lighting gas lamps. It slipped and threw him down. The court held there could be no recovery and very fully considered the reason for the application of the principle of simple appliance.” I think notwithstanding the Labor Law that the principle referred to and applied in the cases above cited, is applicable here and should avoid a recovery by the plaintiff. This ladder was a very simple one, cleats mortised in upon the two side rails. None of these cleats nor any part of the ladder was broken at the time of the accident.' If tliere was any bending of the ladder at all, if that was the cause of the accident, one side rail could not have be"ht alone. The whole ■ ladder must have bent together. The plaintiff was an experienced laborer, a foreman, and he could observe and know that the ladder was weak as well as the defendant could. He was up but a little ways from the bottom when the ladder went over and threw him down. As he went along up he could see and feel the strength of the ladder and if it was not steady or solid enough, he should not have used it, was negligent in using it, and assumed the risk of its falling with him. The bottom of the ladder rested on a roof which was not level. The top rested against the edge of the roof board. It seems to me that the accident was more likely to have occurred from the improper, careless use of the ladder by the plaintiff than from any defect or weakness in it; that the plaintiff permitted the top to slip off the edge of the roof board on one side and tip over so that he fell, but the jury have found that the accident resulted not from the careless improper use of it by the plaintiff but from its defective condition. I think nevertheless that the defendant could not be held liable under the cases cited. Either the principle of a simple appliance was applicable or else the- plaintiff ivas guilty of contributory negligence or assumed the risk. A recovery should not be upheld in a case of this bind.

All concurred, except Kruse, J., who dissented, in a memorandum.

Kruse, J. (dissenting): ■

I agree that the evidence was sufficient to carry the case to the jury, but go further. I think the questions of fact were fairly determined by the jury, and that its verdict should not now be disturbed. In none of the cases cited in thé prevailing opinion is the scaffold statute (now incorporated in the Labor Law [Laws of 1897, chap. 415], §. 18) involved, save one.(Cummings v. Kenny, 97 App. Div. 114), 'and there the judgment upon the nonsuit was reversed.

The duty to see that the ladder was safe devolved upon the defendant. " As was said by Judge Werner, in Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415, 419): “Whenever a scaffold is fúrnished or- caused to be furnished by an employer to be used in erecting, repairing, altering or painting a house, building or structure, it must be safe, suitable and proper,, or the employer is liable.” The statute includes ladders as well as scaffolds.

While, of course, the statute does not take out of the case the questions of contributory negligence and assumption of risk,'those questions, I think, were for the j.ur.y and properly decided. At all events, I think their verdict is not so against the weight of evidence as to require or warrant setting it aside.

Judgment and order reversed and, new trial ordered, with posts to appellant to abide event, upon questions of law and fact.  