
    Samuel Lipstein, Appellant, v. The Provident Loan Society of New York, Respondent.
    Second Department,
    January 24, 1913.
    Master and servant — Labor Law, section 200 — “ plant ” defined — defect in “ plant ”—use of ordinary ladder oñ slippery floor — action to recover for personal injuries sustained by fall from such, ladder — erroneous nonsuit.
    Anything (as distinguished from persons) animate or inanimate, and whether fixed or movable, that is regularly used in the conduct of the business of an employer, and that is neither ways, works nor machinery, and without which, or something of a similar character, a certain business cannot be carried on in the usual and ordinary manner, may be deemed to be a portion of the “plant” connected with such business, within the meaning of such term as used in section 200 of the Labor Law.
    Hence, a section of an ordinary extension ladder furnished by the pro- ' prietor of a large building for the use of his employee in cleaning lighting fixtures suspended from the ceiling, which were about thirty feet above the floor, constitutes a part of the plant used and employed in the proprietor’s business.
    The furnishing of such a ladder, a perfect one of its kind, but not adapted for the purpose for which it was applied, constitutes a defect in the plant.
    A judgment dismissing the complaint in an action by an employee to recover for personal injuries sustained by the slipping of such a ladder should be reversed.
    Hirschberg and Woodward, JJ., dissented, the latter in part, with memorandum.
    Appeal by the plaintiff, Samuel Lipstein, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Kings on the 22d day of May, 1912, upon the dismissal of the complaint by direction of the court upon the opening, and also from an order entered in said clerk’s office on the 23d day of May, 1912, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Sydney W. Stern, for the appellant.
    
      Henry L. De Forest, for the respondent.
   Burr, J. :

This action is brought under the provisions of the Labor Law relating to the liability of employers carrying on business, for injuries sustained by persons in their employ. (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], §§ 200-204, as amd. by Laws of 1910, chap. 352.) This act provides that “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, machinery, or plant, 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 * . * * . The employee, * * * 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.”

The decision of this case requires us to construe the meaning of the word “ plant ” therein contained. In its primary meaning this word relates to growth of a vegetable character, and there is involved in it the idea not only of attachment to the soil but some degree of permanency. When used in connection with a manufacturing, mercantile or industrial establishment it has a wider significance. It has been defined to be “fixtures, machinery, tools, apparatus, appliances, etc., necessary to carry on any trade or mechanical business, or any mechanical operation or process.” (Cent. Diet. tit. “plant.”) “ The whole machinery and apparatus employed in carrying on a trade or mechanical business.” (Webster Diet. tit. “plant.”) “A set of machines, tools, etc., necessary to conduct a mechanical business.” (Standard Diet. tit. “'plant.”) A still wider signification, determined by the context in the contract in which it was employed, may be found in- Rooney v. Thomson (84 Y. Y. Supp. 263), where “plant ” was held to mean “ discoveries ” in connection with the electrical treatment of disease and appliances adapted to the use thereof. In determining its present meaning we are warranted in considering the scope and purpose of the act, its history, other statutes in pari materia, and judicial construction of similar statutes-in other jurisdictions. (Endl. Interp. Stat. §§ 58, 59, 365-371.) One purpose of the statute in question is to secure greater safety to employees — first affirmatively by imposing additional obligations upon employers, and second negatively by withdrawing from their protection certain previously existing defenses. (Laws of 1902, chap. 600, entitled “ An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employees; ” Bellegarde v. Union Bag & Paper Co., 90 App. Div. 577; affd., 181 N. Y. 519; Gmaehlev. Rosenberg, 178 id. 147; Griffiths v. Dudley, L. R. 9 Q. B. Div. 357; Ryalls v. Mechanics’ Mills, 150 Mass. 190; Quigley v. Lehigh Valley R. R. Co., 80 N. J. Law, 486.) Our statute in its present form closely follows the language of the English Employers’ Liability Act, 1880 (43 & 44 Viet. chap. 42, Sept. 7, 1880, in effect Jan, 1,1881). When the Legislature of this State enacts a statute which is a transcript of an English act that has received a known and settled construction by the courts of that country, such construction may be fairly deemed to be, within the mind and intent of the lawmaking power. (Endl. Interp. Stat. § 371; Ryalls v. Mechanics’ Mills, supra.) In the Ryalls case Justice Holmes, referring to.'the decisions construing the English act, said, “-this was the state of comment upon and -construction of the English statute when the Massachusetts act was passed, copying its words very closely. We cannot deal with the latter quite on the same footing as if the Legislature had framed it in their own language, used for the first time. We must assume that they were content with the expounded meaning of the words which they adopted.” But although in its present form the words employed to describe the subject-matter of “ defects ” follow the language of the English' act, such was not the case when our statute -was first

adopted. (Laws of 1902, chap. 600.) The defects therein referred to were those occurring in “the ways, works or machinery.” The word “plant,” at that time appearing in the English act, was omitted, and, we must presume, intentionally. When, however, that word was added to our statute hy the amendment of 1910 {supra), doubtless the Legislature intended to enlarge its scope. Decisions of our own State construing the former provisions thereof must now he read in the light of that intention. At the same time we. should consider also the provisions of other statutes of this State in pari materia, and particularly the statute relating to the liability of railroad corporations to then' employees. By the latter act, first adopted in 1906 (Laws of 1906, chap. 657, adding to Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 42a), and re-enacted in 1910 (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], § 64), the “ defects ” referred to are those existing in the condition of the “ways, works, machinery, plant, tools or implements, or of any car, train, locomotive or attachment thereto.” If the addition of the word “plant” to the Labor Law by an amendment which went into effect September 1, 1910, was to enlarge the scope of the former act, the omission of the words “tools or implements,” which had been a part of the Railroad Law for a period of four years, and which was re-enacted by a statute to take effect June 14, 1910, may be taken as some indication of an intent to make the Labor Law somewhat less comprehensive than the Railroad Law.

Seeking now for such light as may come from judicial construction of similar statutes in other jurisdictions, we naturally turn to some of those cases relating to the English act which may be termed the parent statute. In Cripps v. Judge (L. R. 13 Q. B. Div. 583), in 1884, the Court of Appeal held that a ladder used by a firm of builders in connection with the construction of a house was part of its plant. In 1886, in Weblin v. Ballard (L. R. 17 Q. B. Div. 122), the Divisional Court of the Queen’s Bench, on appeal from the Brentford County Court, held to the same effect. In the succeeding year, in Yarmouth v. France (L. R. 19 Q. B. Div. 647), Lord Esher, master of the rolls, speaking for a majority of the court, not only held that a horse constituted a part of the plant of defendants, who were wharfingers and warehousemen, and who used horses and trolleys to transport goods from their warehouse to the consignees thereof, but also gave this general definition of the word: “ the materials or instruments which the employer must use for the purpose of carrying on his business, and without which he could not carry it on at all.” In the same case Lord Lindley said: “ There is no definition of plant in the Act; but, in its ordinary sense, it includes whatever apparatus is used by a business man for carrying on his business — not his stock-in-trade which he buys or makes for sale; but all goods and chattels, fixed or movéable, live or dead, which he keeps for permanent employment in his business.” Although there was a dissent in that case, it did not involve the construction of the word “ plant. ” In 1898, in Carter v. Clarke (14 Times L. Rep. 172), Mr. Justice Day of the Queen’s Bench Division, on appeal from the Lewes Oojunty Court, held' that a vessel used by defendants to transport coal - from Cardiff to Newhaven, they being under a contract to supply coal to the London, Brighton and South Coast Railway Company, was part of its plant.

If we turn now to similar statutes in sister States, and the judicial construction thereof, we consider first the language of the Alabama statute which conforms to ours in the use of the words “ways, works, machinery or plant.” (Alabama Code, 1896, § 1749; Id. 1907, §3910.) In Georgia Pacific Ry. Co. v. Brooks (84 Ala. 138) it was held that a hammer used to spike a rail to a crosstie was not “machinery ” within the meaning of the statute. The court seems not to have considered whether it may not have constituted a part of the plant, stating in substance that it; was conceded that it was not part of the ways, works or plant. This is a concession which may not have been wisely made so far as the latter term is concerned. In Birmingham Furnace & Mfg. Co. v. Gross (97 Ala. 220) it was held that furnishing a ladder to be temporarily used for the purpose of making a repair to the lever arm of a damper near the top of a tall chimney of a blast furnace, instead of constructing a platform upon which to stand for that purpose, did not constitute a defect in the ways, works, machinery or plant of defendant. In Clements v. Ala. Great So. R. R. Co. (127 Ala, 166) defendant was held not to be liable for furnishing a steel bar to be used in prizing up a rail upon its track, and which was alleged to be defective because dull and blunt at the end instead of being sharp. But the question whether this constituted a part of defendant’s plant, or whether its condition constituted a defect therein, seems not to have been considered in the opinion, which went upon the ground that such bar was not “ machinery in the meaning of the statute,” The sound- * ness of some of these decisions seems to have been questioned-in Sloss-Sheffield Steel & Iron Co. v. Mobley (139 Ala. 425), and the suggestion is there made that “there may be a distinction “ * between tools and appliances used in the repair of the ways, works or machinery, and the tools, implements and appliances used in the regular prosecution of the business of the employer.” Finally; in Going v. Alabama Steel & Wire Co. (141 Ala. 537), it was held that a flat stick regularly used to prevent the shifting of a belt from a loose to a fixed pulley on the shaft was.part of defendant’s plant, and that a failure to have the same properly notched, so that it would not slip out of place, was a defect therein. The New Jersey act (Public Laws of 1909, chap. 83) employs the words “ place, ways, works, machinery or plant,” but we have been unable to find any decision of the highest court of that State construing the word “plant.” The Pennsylvania act (Laws of 1907, chap. 329) makes use of the words “works, plant, or machinery.” In Toward v. Meadow Lands Coal Co. (229 Penn. St. 553) plaintiff’s intestate was killed by being thrown from a car in a mine .because a mule had strayed upon the track and come in collision therewith. In that case it was held that failure to equip a mule hole in .a mine with a hitching post to which a mule might be tied, or ' with some bar or gate by which he could be kept within.it, was a “defect” within the meaning of the words used in the statute, for which defendant was liable. We have not considered the decisions under the Massachusetts act (1 R. L. Mass. [1902] chap. 106, § 71), nor of the Colorado act (R. S. of Col. [1908], p. 596, § 2060), for the reason that the words employed are ways, works or machinery, and the word “ plant ” is omitted therefrom. We have not considered the provisions of the Indiana act (3 Burns’ Ann. Ind. Stat. [1908], § 8017), for the reason that it adds to the words “ways, works, machinery or plant ” the word “ tools.”

Applying, therefore, the various tests above suggested, we conclude that anything (as distinguished from persons), animate or inanimate, and whether fixed or movable, that is regularly used in the conduct of the business of an employer,- and that is neither ways, works nor machinery, and without which, or something of a similar character, such business could not be carried on in the usual and ordinary manner, may be deemed to be a portion of the plant connected with such business. Whether under the Railroad Law above referred to the use of the words “ tools or implements,” etc., may be held to include a tool temporarily used in connection with an emergency arising in the conduct of the business, we need not now determine. We think-it would be extending the word ‘ ‘ plant, ” as used in the Labor Law, beyond the fair meaning thereof to include therein an appliance thus used.

In the case at bar the complaint was dismissed upon the opening of plaintiff’s counsel, which is made a part of the record upon appeal. If plaintiff’s evidence sustained the state-' ments therein contained, the jury might have found the following as facts: Defendant was engaged in carrying on the business of a pawnbroker in a large building at the corner of Rockaway and Pitkin avenues in the borough of Brooklyn. The ceiling of the principal room where defendant received its customers was about thirty feet above the floor. Suspended from the ceiling were about twelve lighting fixtures, consisting of electric bulbs inclosed in globes. ' These globes were about twelve feet from the floor. Plaintiff was employed -by defendant as a caretaker or porter, and it was part of his duty at regular intervals to clean these lighting fixtures and the globes thereof, and certain other wire fixtures about the same distance above the floor. The floor of this room was covered with tiling and was at times slippery. To enable plaintiff to reach these fixtures defendant furnished him with one-half of an extension ladder (the whole of which was about twenty-five feet in length), and'dfistfucted him to use this when engaged in the discharge of his duties.' There was nothing at either end of the ladder to fasten, the same or to prevent it from slipping. On several previous occasions the foot of the ladder had slipped upon the smooth tile floor while plaintiff was using it. He had informed defendant’s general manager of these occurrences, and complained to him of the danger of the use of such ladder, and asked to be furnished with a step ladder. On some of these occasions the manager replied that he “would see about it,” and on one occasion plaintiff was told that he, the manager, would “see that he got another ladder.” On December 24, 1910, plaintiff placed the ladder in a careful manner against the wall for the purpose of cleaning one of the fixtures in the manner in which he had been theretofore instructed. When he was about halfway up the ladder, without fault on his part, it slipped and he was thrown down and injured. We think this ladder was part of the plant used and employed in defendant’s business. Keeping its premises in a clean condition so as to attract its customers, and its lighting apparatus efficient for the use of its employees, might be found to be essential to the conduct thereof. There was also a defect in the plant within the meaning of the act under consideration. That the ladder did not break — that it was sound — viewed as an implement apart from the manner of its use, is not conclusive upon this question. In Heske v. Samuelson & Co. (L. E. 12 Q. B. Div. 30) Lord Chief Justice Coleridge said: “ The question is whether the fact that the machine was unfit for the purpose for which it was applied, constitutes a defect in its condition ’ within 43 & 44 Yict. c. 42. The question really almost answers itself. If it was not in a proper condition for the purpose for which it was applied there was a defect in its condition within the meaning of the Act;” and in the same case Sir James Fitz james Stephen said: “Could it be said that if a windlass fit only for raising a bucket is used to draw up a number of men, that there is no defect in the condition of the machinery. The condition of the machine must be a condition with relation to the purpose for which it is applied.” (See, also, Weblin v. Ballard, supra.)

The judgment and order appealed from must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., and Carr, J., concurred; Hirschberg, J., dissented; Woodward, J., dissented in separate memorandum.

Woodward, J. (dissenting):

I dissent. While I agree with the views of Mr. Justice Burr ás to what constitutes the plant, I do not wish to vote that there' is a liability on the part of a master for every defect, real or fanciful, which may be suggested, after the accident has happened, and in this case, if there was no defect in the ladder as designed — if it was a perfect ladder of its kind-— because it slipped on a slippery tile floor does not necessarily-render the defendant liable, or present a question of fact for the jury.

Judgment and order reversed and new trial granted, costs to abide the event.  