John W. Swain, Appellant, v. The Brooklyn Alcatraz Asphalt Company, Respondent

John W. Swain, Appellant, v. The Brooklyn Alcatraz Asphalt Company, Respondent. Negligence — injury to an employee working on a scaffold — liability and duty of the master in respect thereto — the foi’eman directing its construction is not his alter ego. Where, in the work of tearing down and reconstructing a building, it becomes necessary to erect a scaffold, the erection of such scaffold is a mere detail of the general employment, and the foreman under whese direction the' scaffold is erected is not'the alter ego of the master. If the master exercised reasonable care in the selection of the employees who com structed the scaffold, and furnished sufficient material reasonably suitable for that purpose, and reasonably safe and suitable implements, he is not liable to an employee who, while at work upon the scaffold, sustained.personal injuries in consequence of its negligent construction, even though the injured employee did not participate in its construction. Semble, that negligence on. the part of the master cannot be predicated upon his failure to supply larger nails than were used in the construction of the scaffold, where it does not appear that a sufficient number of nails of the size actually furnished and used would not have made a perfectly safe scaffold. Appeal by the plaintiff, John W. Swain, from a judgment of the . Supreme Court in' favor of the defendant, entered in the office of the clerk of the county of Kings on the 7th day of May, 1900, upon the dismissal of the complaint by direction of the court at the close of ■ the plaintiff’s evidence after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 17th. day of April, 1900, denying the plaintiff’s motion for a new trial made upon the minutes. The accident in this case is alleged in the complaint to have occurred on March 20, 1897. The Labor Law was.amended so as to provide that “ A. person employing 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 dr erected for the performance of such labor scaffolding * * * 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 the person so employed or engaged,” by section 18 of chapter 415 of the Laws of 1897, which went into effect on June 1, 1897. George W. Wingate [George Albert Wingate with him on the brief], for the appellant. George 0. Heeling ton, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff seeks to recover damages for injuries sustained in an accident happening upon the premises of the defendant, upon the ground that “ the said defendant, its agents and servants, carelessly, negligently and unlawfully made and erected an unsafe, defective and dangerous wooden structure or scaffolding upon which the plaintiff, as a carpenter hired and employed by the defendant, was directed by said defendant, its agents and servants, to mount and to do and perform thereon work, labor and services for the defendant.” The complaint further alleges that after mounting such scaffold “ said structure or scaffolding, by reason of such carelessness, negligence and unskillfulness of the defendant, its agents and servants, in erecting and making said structure and scaffolding, gave way and fell and caused the plaintiff to fall,”' etc. The learned trial court, at the close of plaintiff’s case, granted a motion for a nonsuit and refused the requests of the plaintiff to go to the jury upon various questions. Subsequently the court denied a motion for a new trial upon the minutes, and from the judgment and order entered appeal is made to this court. The plaintiff asks for a reversal of the judgment and order on the ground that the court below has failed to recognize the distinction that exists in law between the cases where a workman who has been injured by the falling of a scaffold participated in its construction, or where, as in the case at bar, he was called by his employer to use the scaffold as a completed structure, he having no knowledge of how it was built or as to any defect or deficiency in the materials of which it was constructed. If the court, in a case where this distinction existed, failed to make a proper ápplication of the law, there could be no doubt of the right of the plaintiff to have a new trial, but a careful examination of the authorities called to our attention by plaintiff’s counsel does not justify the position taken. The evidence shows that the plaintiff, with several other carpenters and laborers, was at work upon the premises, and in the employ of the defendant, in the - tearing down and reconstruction of a certain building. One Wiseman appears to have been in charge of this work, and is referred to by the witnesses as the foreman, but he appears to have had no other authority than the direction ' of the immediate labors, in - which he actively participated. In order to carry on the work it was necessary to construct a scaffold, and this was done by the foreman and two other employees, ■while the plaintiff and another were engaged in preparing certain timbers which were to enter into the construction of the building. Tire two latter were located, during the time of the construction of the scaffold, in the center of the yard or inclosu.re, some fifty feet from the building, and when the platform or scaffold was •completed, about two o’clock in the afternoon of the day of the accident, the- foreman called to the plaintiff and his companion to come ■and go to work in the placing of the timbers for the building. The •plaintiff was directed to go upon the scaffold with a sledge hammer with which he was to pound or .strike upon an upright timber, under the direction of a fellow-laborer who was using a spirit level to tell when the timber was plumb.' The plaintiff says: “ I went up there. Just before I went I see them putting a piece across from one post to another, and didn’t think'he- was putting in nails enough, that was my idea about it, and I said to him (the foreman), ‘ G-us, I hope you ain’t putting up that scaffold to break somebody’s neck ? ’ ■ He •said, ‘ Never you mind, you come up here and go to work. If I .ain’t afraid to go to work on it you need not be.’ So I went up.” 'There appears to have been .some other conversation between the foreman and' the plaintiff after he was upon the platform in reference to the number of nails used, the size of them, etc., but it does not seem to be necessary to go into the matter any farther, as the ■foreman was clearly not engaged in the discharge of any duty which -the -master owed to the plaintiff, but was merely a fellow-servant ’ whose negligence cannot be imputed to the defendant. The construction of this • scaffold was, under all of the authorities, a mere detail of the general employment; it was necessary to construct the -staging in order to carry on the work of rebuilding, and the fact ■that the plaintiff was not detailed to this particular branch of-the ■employment does not change the rule of law with respect to his relations to the defendant. There is no suggestion that the foreman ■or any of the other employees were not competent men ; the plaintiff •himself testifies that the foreman “is a good mechanic at most .-anything.” It is not questioned that the place furnished for carrying on the general employment was reasonably safe for that purpose, nor do the pleadings suggest that there was any defect in the materials furnished by the defendant, although upon this appeal the plaintiff urges that the nails used were not as large as they should have been. The duty of the defendant not involving the construction of this scaffold, it could not be made responsible to the plaintiff by anything which the foreman of the work may have directed, for in the construction of the scaffolding he was a fellow-servant of the plaintiff. The defendant had discharged its duty when it had used reasonable care in the selection of fellow-employees, in providing a ■reasonably safe place for the plaintiff to work, and in providing reasonably safe and suitable implements, considering the nature of the employment itself. (Cullen v. Norton, 126 N. Y. 1, 3.) In the •case of Kimmer v. Weber (151 id. 417) where the plaintiff, with •others, had adopted and remodeled some scaffolding used previously by the plumbers at work in the building, the court, after pointing out that the construction of the platforms was one of the details of the general employment, say: “The scaffolding having been- constructed by the workmen themselves, or under their direction, if the appliances which they made use of for that purpose were in any respect defective or insufficient, they had, so far as appears, the same means of knowing that fact as the defendants. It was not enough to prove that the scaffolding gave way under the circumstances, resulting in an accident, or that it was in fact defective, unless it was made to appear that this was the proximate result of some omission of duty on the part of the •defendants or their foreman. If they furnished suitable materials for the construction of a proper platform, and the workmen them■selves constructed it according to their own judgment, the defend.ants were not liable for the manner in which they used the material ■so furnished.” (See authorities there cited.) The case of McCone v. Gallagher (16 App. Div. 272) so fully ■discusses the authorities, and so concisely states the law of this case' ;at page 279, that it does not appear necessary to go over the ground .again; and even were the question before us, which is urged by the plaintiff, that the nails used were insufficient in size, there would be little difficulty in sustaining the judgment in this case. While the defendant undoubtedly owed the duty of furnishing reasonably safe and suitable implements, when it attempts to furnish them, it would be carrying this rule a long way to say that- an employer was bound to anticipate the particular size of nails which should be used at every stage in the construction of a building, and that it was his duty to have those particular sizes of nails in stock.- . In the case at bar one of the witnesses who was employed in the construction of the scaffold says that he was directed by the foreman to get the nails which .were to be used in making the scaffold; that he went to a keg in the office or carpenter shop and brought out two handsful of tempenny nails, such as were used; that there were also some. lath nails and some large spikes, some railroad spikes,- in the office. Some of the witnesses thought twenty-penny nails were better for building scaffolds and in using the materials which . had been supplied, but it does not appear that a sufficient number of ten-penny nails, which would have reached one and one-half inches into the timber after passing through the plank, Would not have made a perfectly safe scaffolding. It is not necessary, however, to decide this point, as the case was tried upon the theory that the defendant had assumed to provide the scaffold, which was negligently constructed, and that the plaintiff had a right to rely upon the statement of the foreman that the scaffold was a safe and proper one, and the. pleadings did not raise the issue. The judgment and order appealed from should be affirmed, with costs. Sewell, J., taking no part. Judgment and order unanimously affirmed, with costs.