Mary Greener, as Administratrix, etc., of Bernard Greener, Deceased, Appellant, v. General Electric Company, Respondent

Mary Greener, as Administratrix, etc., of Bernard Greener, Deceased, Appellant, v. General Electric Company, Respondent. Third Department, November 15, 1911. Master and servant — Employers’ Liability Act —ladder not fastened at the top — when negligence and contributory negligence for jury. In an action under the Employers’ Liability Act to recover damages for • the death of the plaintiff’s intestate, it appeared that the defendant maintained in its factory a traveling crane suspended below the girders of which was a cage in which the operator of the crane sat; that a ladder was bolted to the cage at the bottom and at the top bar thereof, which ladder extended above the top bar forty-.two inches, and that for that distance the ladder was not fastened. The intestate, who was a rigger weighing about 218 pounds, had together with other employees of the defendant used the ladder for a long time and on the date of the accident while working on the girder of the crane he was told by an employee, who stood below him, to come down and assist him. The intestate when next seen was falling to the floor of the building. While . no one saw the intestate upon the ladder it was observed that the part of the ladder which extended above the place where it was fastened was bent outwards nearly at right angles, and immediately after the accident the intestate told employees, who went to his assistance, that the ladder bent over with him. Held, that the dismissal of the complaint was error; that it could not be said, as a matter of law, that the intestate had no right, to use the ladder, or was guilty of contributory negligence, or that the defendant was . not negligent in maintaining the ladder in said condition. Appeal by the plaintiff, Mary Greener, as administratrix, etc., from a judgment of the Supreme Court in favbr of the defendant, entered in the office of the clerk of the county of Schenectady on the 19th day of May, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Schenectady Trial Term. Fryer & Lewis [Edgar T. Brackett of counsel], for the appellant. James O. Carr, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: In one of the defendant’s factories is a traveling crane for the moving of heavy articles. Suspended below the girders of the crane is a cage in which the crane operator sits. From, the cage extending up even with the top of the girder is a ladder about ten feet long, made of wrought iron, bolted to the crane cage at the bottom; it was also bolted at the top bar of the cage, but extended above the bar forty-two inches. This forty-two inches was not braced to the girders. The crane was about two feet from the girders.. The side pieces of the ladder were wrought iron, three-eighths of an inch in thickness and one and three-quarters of an inch in width. The rungs of the ladder were inserted in the sides. The evidence tends to show that the plaintiff’s intestate and other riggers were working about the- crane, and the intestate was standing upon the girder of the crane, when he was called by an employee, whom he was assisting, to come down and aid him there. The next seen of the intestate he was falling towards the floor of the building, which was about forty feet from the girder, and it was noticed that the top of the ladder, the forty-two inches extending above the place where it was fastened to the top of the cage, was bent outwards and nearly at right angles. Immediately the other employees went to his assistance, and some one asked what' was the matter, and he said the ladder bent over with him. Other riggers had frequently used this ladder for the purpose of ascending and descending from the girder. The fact that intestate was standing near the ladder, which was upright, was asked to come down and was soon seen to be falling to the floor and the ladder was found bent, raises a fair inference that the bending of the ladder had something to do with his fall. No one saw him upon the ladder, but it is evident that his attempting to descend upon the ladder caused it to bend over, or that in falling he grabbed the ladder and caused it to bend. He was an experienced man, engaged in his ordinary business, and while the ladder had been used by' himself and various employees for a long time, it is evident that it was not then able to sustain the weight of the intestate as it came upon it. He weighed about 218 pounds. It cannot be said as a matter of law that the intestate had no right to use this ladder, or was guilty of contributory negJigen.ee which contributed to his death. The action is under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352), and I think it was a fair question' of fact whether the ladder was proper and sufficient for the purposes for which it was permitted to be used, and whether the intestate met his death by reason of the negligence of the defendant in maintaining the ladder in the condition in which it was. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.