
    Thomas C. Stewart, as Administrator, etc., of Andrew C. Stewart, Deceased, Respondent, v. John W. Ferguson, Appellant.
    
      Scaffold — under what circumstances a fall thereof creates a presumption of negligence under the statute and at common law.
    
    In view of the provisions of section 19 of the Labor Law (Laws of 1897, chap. 415) requiring that every scaffold shall be so constructed as.to bear four times the maximum, weight required tobe put upon it when in use, evidence that workmen engaged in erecting a scaffold were .called away by their foreman before it was completed; that, in their opinion, it was left in a dangerous condition, and that upon the following morning it fell without apparent cause while bearing the exact amount of material necessary for the use of the workmen upon it, raises a presumption that the employer was guilty of negligence.
    
      It seems, that in such a case, independent of the statute, the unexplained falling of the scaffold creates a presumption of negligence on the part of the employer.
    IngRaham and McLaughlin, JJ., dissented.
    
      Appeal by the defendant, John W. Ferguson, from, a 'judgment, of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of New York on the 23d day of Februaiy, 1900, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Vernou Bouvier, Jr., for the appellant.
    
      Edward P. Lyon, for the respondent.
   Rumsey, J.:

This case has been twice heard upon appeal and is reported in 34 Appellate Division, 515, and 44 Appellate Division, 58. We see no reason to change the rules laid down in those opinions, especially as our interpretation of the statute has been adopted by the second department in the case of McAllister v. Ferguson (50 App. Div. 529), where the liability of this defendant was in question for an injury received by another workman by the falling of the same scaffold by which Stewart was killed, and also in the case of McLaughlin v. Eidlitz (50 App. Div. 518).

The uncontradicted testimony is that the scaffold was built on the afternoon before it fell, and that while it was in process of construction and before the builders ceased work upon it, Stewart, the plaintiff’s intestate, a mason in- the employ of the defendant and who had taken some slight part in its construction on the previous day, was ordered by one Montague, the defendant’s foreman,- to go upon it, and did so. There is no evidence to show that Stewart -had any knowledge or information as to the extent or kind of work done to the scaffold after he had himself worked upon it. It appears, however, that, before it was completed, Montague, the foreman who was in charge of the work, called away the men engaged in building it while it was, in the opinion of those men, in a dangerous condition. Stewart worked on the scaffold on the afternoon of the twenty-second of November but a short time. On the morning of the twenty-third the masons went to work at the usual time, and at .about quarter-past nine o’clock, suddenly and without warning, and without any cause so far as appears, the scaffold gave way and the meu upon it fell with it, and Stewart was killed and McAllister seriously injured. It appears affirmatively that at the time the scaffold fell there were at work upon it four men with two barrows of brick and two bar rows, of mortar, and the undisputed testimony was that that amount of material was required for the work of the men upon the scaffold.

The Labor Law forbade any person who employed another to-perform labor in the erection of any building to furnish or erect or cause to be furnished or erected for the performance of such labor-a scaffold which was unsafe, unsuitable or improper and which was-not so constructed as to give proper protection to the life and limb of' the person so employed. (Laws of 1897, chap. 415, § 18.) In respect of that matter, it has been held in the cases cited above that, while-, the statute does not make the master a guarantor of the safety of. the scaffold, yet the construction of it is his personal duty as distinguished from the duty of the servant; and that the master is bound to use reasonable care to see that the scaffold furnished is not unsafe, but is safe and proper for the use for which it is intended; and that, he cannot delegate that duty to another and relieve himself from responsibility merely by reason of the fact that he has selected a. person of approved skill and fitness, and has furnished him with the material with which to do the work; but that although that has. been done, yet if the scaffold is not suitable or safe or proper, the negligence, if any, in so building it is the negligence of the master.

Not only does the statute impose that duty upon the master, but it provides further that every scaffold shall be so constructed as .to-bear four times the maximum weight required to be put upon it when in use. (Laws of 1897, chap. 415, § 19.) This establishes'a criterion of the safety of a scaffold to which it is the duty of the master to-conform; and if it appears that a scaffold which he has erected for-the use of his employees does not possess the strength which the statute requires, the master clearly fails to do the duty towards his-employee which the statute has imposed upon him. In respect to this matter the court charged the jury that under this statute the duty devolved upon the defendant to exercise reasonable care and precaution to furnish a safe scaffold for his workmen, and that the first question for them to determine was whether the defendant used proper care and reasonable precautions in furnishing the scaffold, and, if they found that he did, their deliberations were to cease there, and they were to find'a verdict for the defendant. ' There is no complaint made as to the charge to the jury with respect of the question of contributory negligence, and it is clear that-that question was properly submitted to them. The only question in the-case arises from the refusal of the court to charge one of the requests asked by the defendant. That, request was “ that the happening of the accident, created no presumption of negligence on the part of the defendant, but the burden is upon the plaintiff to establish by a fair preponderance of credible testimony that the falling of this .scaffold was due to the negligence of the defendant and without any negligence on the part of the decedent which contributed thereto.” So far' as the question of contributory negligence was concerned, the court had already charged that if. the decedent went upon the scaffold knowing it to be unsafe and defective and having presented to his vision obvious risks, he was then guilty of contributory negligence and assumed the risk and cannot complain of the result; On that question the charge was as favorable as the defendant had the right to request, and' the court was not called upon to-repeat its charge in that regard.

It is evident that the jury might assume from the. charge that they were at liberty to say from the proof that the fall of the scaffold was of itself evidence of negligence on the part of the defendant,' for they came into court and asked the question, “ If it has not been shown by the evidence that the scaffold was defective, can the defendant be held liable by reason of its fall?” and they were in reply expressly told by the court that the falling of the. scaffold unexplained, raised a presumption of negligence-on the part of the-employer, and that presumption would justify a finding of negligence on the part of the defendant. Of course, the refusal to charge as requested must be taken in view of the duty which the law placed upon the defendant and which he should, have performed, and that was to furnish a safe, suitable and proper scaffold, which was defined by the law to be one capable of sustaining four times the maximum weight to be placed upon it. Unless that was done the defendant had failed in the performance of his duty.

It appears and is undisputed that the defendant’s manager called the men who were at work upon the scaffold away from it before it was completed.; in the opinion of the man who was endeavoring to finish it the scaffold was left in a dangerous condition. It is further in evidence and undisputed that the ordinary load which, that scaffold should have borne was precisely that which was upon it; and it is an undisputed fact in the case that this scaffold, not overloaded, fell without apparent cause and so suddenly that a witness describes its fall by saying tliat he heard a noise and looked up and the scaffold which had been there was there no longer, and the conclusion necessarily follows that the scaffold was not built in accordance with the requirements of the statute which imposed a certain duty upon the defendant.

It is a settled rule of law that a violation of a statute is competent evidence to be submitted to a jury upon which they may base a finding of negligence although it is not conclusive. (Beisiegel v. N. Y. C. R. R. Co., 40 N. Y. 9 ; Knupfle v. Knickerbocker Ice Co., 84 id. 488 ; McPeak v. N. Y. C. & H. R. R. R. Co., 85 Hun, 107.)

As the violation of the statute and its effect in this case was undisputed the jury would have been at liberty to find that the defendant was guilty of negligence because of that violation •—■ and not only was the court right in refusing to charge that the happening of the accident which was the result of that violation created no presumption of negligence and telling the jury that from the accident there arose a presumption of negligence, but it might have gone further and said to the jury that upon the uncontradicted testimony in the case the negligence of the defendant was established.

But even without resorting to the statute, upon the undisputed facts in this casé, the refusal to charge as requested, and the explanation of the refusal, were correct. It was held in the case of Green v. Banta (48 N. Y. Super. Ct. 156) that the fact that a scaffold winch had been provided by an employer for his servant to work upon gave way without any reason was prima facie evidence of negligence on the part of a person bound to provide a safe and proper scaffold. In that case the court had charged the jury that the fact that the scaffold gave way was some evidence, what might be called prima facie evidence, of negligence on the part of the person bound to provide the scaffold. That charge was approved by the General Term and the case was affirmed in the Court of Appeals (97 N. Y. 627) without opinion, Certainly the Court of Appeals sustained the proposition which was essential to the determination of the case. In the case of Solarz v. Manhattan R. Co. (8 Misc. Rep. 656) it appeared that the defendant had furnished a. scaffold upon which the plaintiff was called upon to work-; that* when he went upon it, it fell without any reason s'o far as appears* and the court held and charged the jury that the unexplained breaking down of the scaffold -made out a case sufficiently strong to go to-the jury. That was affirmed in 11 Miscellaneous Reports, 715, and again in 155 New York, 645.

So that whether the plaintiff stands upon the undisputed failure of the defendant to perform the duty which the statute imposed upon him, or upon the unexplained falling of the scaffold which he was bound to make safe, suitable and proper, in either case the court was correct in saying that when such a scaffold, provided for an employee, fell without any reason for its failure, that fact of itself' was evidence of negligence upon which the jury might base, a verdict that the defendant had not performed his duty. The court* .therefore, made no error in refusing to charge as requested and in its explanation of the duty of the defendant, and the judgment and order appealed from should be affirmed, with costs.

Patterson and Hatch, JJ., concurred; Ingraham and McLaughlin, JJ., dissented.

McLaughlin, J.

(dissenting):

I am unable to concur in the conclusion reached by Mr. Justice Rumsey in this case. The learned trial justice was requested by the defendant’s counsel to charge: “ That the happening of the accident created no presumption of negligence on the part of the defendant, but the burden is upon the ¡ilaintiff to establish by a fail-preponderance- of credible testimony that the falling of this scaffold was due to the negligence of the defendant and without any negligence on the part of the decedent which contributed thereto.”' The request was refused and an exception taken. After the jury had retired they sent the following communication to the court: “ If it has not been shown by the evidence that the scaffold was defective, can the defendant be held liable by reason of its fall? ” to which the court answered, “ I have already charged you that the falling of this scaffold, unexplained, raises a presumption of. negligence on the part of the employer, and that presumption would justify a finding on your part of negligence on the part of the employer.”

• This, I think, was an erroneous instruction as to the law applicable to the facts, and for- that reason the exception to the refusal to charge as requested was well taken. The falling of the scaffold, under the facts set out in this record, created no presumption whatever that the defendant was guilty of negligence, and before the plaintiff could recover he should have established, in addition to the fall of the scaffold, that the defendant had been guilty of some act, either of omission or commission, which resulted in the death of his intestate. It is uncontradicted that the scaffold was in the process of construction, and when the plaintiff’s intestate went upon it it had not then been completed.

In the prevailing opinion stress is laid upon the fact that the scaffold was not constructed in accordance with the Labor Law, so called (Laws of 1897, chap. 415, § 19), in that it would not sustain four times the maximum weight required to be put upon it when in use. Just what application this statute has to a scaffold not completed, but in the process of construction, or how it can be resorted to for the purpose of sustaining the judgment under the facts set out in this record, I am unable to see. Manifestly it was intended that the statute should apply only to completed scaffolds and not to those in process of construction.

The defendant was entitled to have the jury instructed as requested by his counsel, and for the refusal of the court to thus instruct them I think the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, J.

(dissenting):

I concur with Mr. Justice McLaughlin. It is quite clear that in this case the only ground upon which the defendant could be held, guilty of negligence was in directing or permitting his employees to use an uncompleted scaffold which, when used, was unsafe. The evidence is uncontradicted that at the time the scaffold fell it was incomplete, and there is no evidence to show that if completed it would not have been safe. The falling of such an uncompleted scaffold was not of itself evidence of negligence on the part of the defendant. Moré was required. It was necessary to show that he directed or permitted his employees to use the scaffold in its unfinished condition. The negligence for which the defendant was liable, therefore, was not the improper construction of the scaffold, but the Use to which it was put in its unfinished condition, and for that reason I do not think that the mere falling of the scaffold .would create a presumption that the defendant was negligent. There was no direct evidence that Montague (the defendant’s foreman) directed the deceased to work upon the scaffold before it was finished. There was evidence, 'however, from which the jury could infer that the defendant directed or permitted him to work there, and in that case it would have been justified in a finding of negligence, and I think, therefore, that the defendant was entitled to have the jury instructed that the mere happening of the accident (fall of the scaffold) created no presumption of negligence on the part of the defendant. I do not think, however, that it can be said that a fall of a scaffold without other evidence would create a presumption of negligence. It might be evidence from which a jury could find negligence, but that is a very different proposition. There are some cases like that of a common carrier of passengers when the happening of an accident may create a presumption of negligence, but I do not understand that the duty of an employer to his employees rests upon the same principle. That in such a case it'is a question of evidence and that there cannot be, from the happening of the accident, a presumption that the defendant was negligent. That the refusal to give this instruction was vital in the disposition of the case, is shown by the subsequent charge when the jury asked for further- instructian and the court told them that the falling of the scaffold, unexplained, raised a presumption of negligence on. the part of the employee, and it was only after this explicit instruction that the jury found a verdict for the plaintiff. .This, in effect, was a direction to find a verdict for the plaintiff.

I think, therefore, that there should be a new trial.

Judgment and order affirmed, with costs..  