
    Paul Mizak, Appellant, v. The Carborundum Company, Respondent.
    Fourth Department,
    April 19, 1916.
    Master and servant—negligence—Labor Law, section 300, construed — when ladder constitutes way or part of place to work — injury to employee by fall of ladder — Labor Law, section 18.
    A ladder permanently placed, used as a stairway and forming the only means of access by workmen from the ground floor and the second floor of a building, must be considered as a way or as a part of the place to work, rather than as a tool or appliance, within the meaning of the Labor Law, and where an employee is injured by such ladder slipping or falling, it not having been fastened at either end, he is entitled to . have the question as to whether the ladder was reasonably safe for the purpose for which it was furnished submitted to the jury.
    Section 18 of the Labor Law is not applicable to such a case, as the ladder was not being used in the erection, alteration or repair of any building or structure.
    Motion by the plaintiff, Paul Mizak, to set aside a nonsuit and for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance after the court at the Niagara Trial Term had granted defendant’s motion for nonsuit at the close of plaintiff’s case, judgment on the nonsuit being in the meantime suspended.
    
      Augustus Thibaudeau [Leggett & Thibaudeau, attorneys], for the plaintiff.
    
      Alfred W. Gray [Dudley & Gray, attorneys], for the defendant.
   Foote, J.:

The action is by servant against master for damages for personal injuries sustained by the fall of a ladder by which plaintiff was attempting to ascend from the ground floor to a platform, a distance of about twelve feet, in the manufacturing plant of defendant. The accident occurred on August 9, 1910. The action is brought under the employers’ liability provisions of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14). Plaintiff was employed as a machinist’s helper and as such went to all the different parts of defendant’s manufacturing plant to assist the machinist in the inspection and repair of the machinery. The accident happened in the transformer room, so called. The foreman had instructed the machinist and plaintiff, his helper, to inspect and, if necessary, repair the conveyor and certain machinery which was then in operation on the second floor above the transformer room. To reach this second floor a ladder was used which stood on the cement floor of the transformer room and leaned against a platform about twelve feet above the floor, the ladder being about thirteen feet in length. It was necessary to ascend this ladder to the platform, and from the platform were stairs leading up to the second floor. This ladder was used exclusively for this purpose and had stood at the. same place in the transformer room with its top leaning against the platform above for five or six years. It afforded the only means of access to the platform and stairs above. The machinist ascended the ladder first and after he had reached the platform plaintiff undertook to follow him, but before plaintiff reached the platform the ladder fell, precipitating plaintiff to the cement floor, producing the injuries for which he sues. Whether the foot of the ladder slipped on the cement floor, or whether the ladder being set so nearly perpendicular it tipped backward from plaintiff’s weight, does not clearly appear. The ladder was not fastened either at the bottom or the top where it rested against the platform.

The nonsuit was granted apparently on the theory that the ladder was an appliance or simple instrument, and upon the authority of Kelly v. National Starch Co. (142 App. Div. 286). But the question considered in that case is not the same as is involved here. That action was based upon the liability imposed by section 18 of the Labor Law (Gen. Laws, chap. 32; Laws of 1891, chap. 415; Consol. Laws, chap. 31; Laws of 1909, chap. 36) which prohibits an employer from furnishing for the use of his employees “in the erection, repairing, altering or painting of a house, building or structure ” among other things, any “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.” Notwithstanding this statute the case was disposed of on the theory that the defective ladder there in question was a simple appliance to be used by the workman like any other of his tools or appliances for doing his work.

The present case presents a different question. Section 18 of the Labor Law is not applicable, because the ladder in this case was not being used in the erection, alteration or repair of any building or structure. The ladder upon which plaintiff here was injured was not an appliance furnished to plaintiff to use in any part of defendant’s premises where he should need a ladder, but was furnished and located permanently as a means for all of defendant’s servants to ascend to the platform and stairs leading to the second floor who should have occasion to do so. In other words, it was a substitute for stairs and for this reason appellant contends that it was a “ way ” within section 200 of the Labor Law. We quote that part of the section upon which appellant relies as it stood prior to the amendment of 1910 (Laws of 1910, chap. 352), as that amendment did not take' effect until September first of that year and after this accident:

“§ 200. Employer’s liability for injuries. When personal injury is caused to an employee who is himself in the exercise of due care and diligence at the time:
“ 1. By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works or machinery were in proper condition; * * * The employee "x" * * shall have the same right- of compensation and remedies against the employer as if the employee had not' been an employee of nor in the service of the employer nor engaged in his work. * *

This section has not apparently laid any additional duty upon the employer in reference to the safe condition of his ways, works or machinery than he was under at common law. (Nappa v. Erie R. R. Co., 195 N. Y. 176; Gmaehle v. Rosen berg, 178 id. 147.) But it has deprived the master of some of the defenses which he had at common law. At common law it was the duty of the master to furnish to the servant a reasonably safe place to do his work. This includes a reasonably safe way to get to and from his work. (Kirby v. Montgomery Brothers & Co., 197 N. Y. 27.) A ladder permanently placed, as this one was, to afford the workmen the means of getting back and forth between the ground floor and the second floor must, we think, be considered as a way or as a part of the place to work rather than as a tool or appliance, and we think plaintiff was entitled to have the jury say whether this ladder, placed as it was without being made fast or secure at either end, was reasonably safe for the purpose for which it was furnished.

If we are right in this, it was error to nonsuit plaintiff and plaintiff’s exceptions should be sustained and the motion to set aside the nonsuit and for a new trial should be granted, with costs of this appeal to plaintiff to abide the event.

All concurred.

Plaintiff’s exceptions sustained and motion for a new trial granted, with costs to plaintiff to abide event.  