David Kiffin, Appellant, v. William F. Wendt and Henry W. Wendt, Respondents

David Kiffin, Appellant, v. William F. Wendt and Henry W. Wendt, Respondents. Negligence—fall of a ladder, put in place on a roof by direction of a foreman, while in use by an employee ■—assumption of the risk by the employee. A ladder placed upon a roof by a carpenter, employed by persons engaged in altering a building, in order to enable him to adjust a smokestack, which ladder is not attached to the roof, but rests against a cleat which is securely fastened to the roof by spikes, is a mere temporary contrivance and detail of-the work; and where a co-employee, who goes upon the ladder for the purpose of placing a hood upon the smokestack, is injured in consequence of the ladder sliding over the cleat against which it rests, the employers are not liable for such injuries. The fact that the ladder was placed in position under the direction of the employers’ foreman, and that when he directed the inj ured employee to go upon the roof he told him that there was a ladder there and that everything was in readiness, does not alter the question of the employers’ liability, even though the injured employee had no knowledge o£ the defective position of the ladder, and had nothing to do with placing it in that position. Semble, that the situation was obvious, and that the injured employee assumed the risk. Appeal by the plaintiff, David Kiffin, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 2/Tth day of May, 1898, upon the dismissal of his complaint by direction of the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 28th day of April, 1898, denying the plaintiff’s motion for a new trial made upon the minutes. The plaintiff at the time he received the injury of which he complains was in the employ of the defendants as a common laborer. While thus engaged he was directed by the defendants’ foreman or superintendent to go in company with two other employees upon the roof of a building occupied by the defendants and there to adjust a collar or apron to a smokestack which had recently been erected. It seems that the defendants were engaged in putting this building and the premises upon which it was located in suitable condition for carrying on the business of manufacturing iron and steel, and among other alterations or additions they had caused a smokestack to be constructed and placed in position. To this end a hole had been cut in the roof of the building through which the stack protruded, and in order to reach the same and adjust fit from the outside, some one had placed a ladder upon the roof which extended from the eaves thereof to the stack. This ladder was an ordinary one, constructed of two side strips about two and one-half inches in width, with rounds attached thereto which were ten or eleven inches apart. The ladder itself was not attached to the roof, but rested against a cleat some three inches thick and two feet in length, which was securely fastened by means of spikes. On the occasion in question the plaintiff and his two companions started to go upon the roof, one of them carrying the hood or apron. In order to reach the stack they obtained another ladder which they placed against the building, so as to connect with the one lying upon the roof. The plaintiff was the last of the three to ascend, and when he came to the ladder upon the roof one of his companions had néarly reached the stack and the other, who carried the hood, was but a few feet therefrom. As the plaintiff started to go towards the other two the ladder slid from the roof, carrying him with it, and he fell to the ground, striking upon his left foot and fracturing the larger bone at the knee joint. It does not appear what caused the ladder to slip, but as all of the witnesses testified that ice had accumulated at the point where it rested against the cleat, it is quite probable that this circumstance, together with the fact that three men were upon the ladder at the same time, caused it to slide over the cleat in the manner described bv one of the witnesses. It is conceded that there was no defect in the ladder itself, and that the cleat was so securely fastened that it did not give away. Upon the facts above stated the plaintiff was nonsuited at the Trial Term and from the judgment entered thereon this appeal is brought. Fitzgerald & Bell, for the appellant. John M. Chipmam, for the respondents. [MAJORITY — Adams, J.:] Adams, J.: Giving to the plaintiff’s case all the force to which it is entitled, we are nevertheless persuaded that it fails to establish a cause of action against the defendants. If the accident which resulted in the plaintiff’s injuries is attributable to any cause other than that of the plaintiff’s own negligence, it was due to the insecure manner in which the ladder, which the plaintiff was using as a means of access to the smokestack, was fastened to the roof. There is no evidence in the case tending to show that this ladder was placed upon the roof by the defendants’ direction or that they had any knowledge that it was there, and just who is responsible for the insecure manner in which it was adjusted does not appear. The presumption is irresistible, however, that it was simply a contrivance which had been constructed and used by the defendants’ carpenter a few days prior to the accident to enable him to reach the smokestack and adjust the same to the hole in the roof through which it protruded. At all events, it is perfectly obvious that the ladder, so far from being a permanent attachment to the building, was merely a temporary contrivance or expedient which had been resorted to for a special purpose and to meet a particular emergency. This being the case, we think it must be regarded as in the nature ■of a detail of the work which the plaintiff and his fellow workmen were called upon to perform. There is evidence which would undoubtedly justify the inference that Hurley, the defendants’ foreman, knew of the existence of the ladder, for when he directed the plaintiff to assist in placing the hood upon the stack, he told him there was a ladder on the roof and that everything was in readiness; but this fact does not strengthen the plaintiff’s case, for if the use of the ladder was, as has been stated, a detail of the work, and it be assumed that it was placed in position by Hurley or by his direction, he was, under the circumstances of the case, so far as that particular act was concerned, a co-employee of the plaintiff, for whose neglect or omission of duty the defendants were in nowise responsible, even though the plaintiff himself was not cognizant of the defective position of the ladder, and had nothing whatever to do with placing it in that position. (Loughlin v. State of New York, 105 N. Y. 159; Cullen v. Norton, 126 id. 1; Butler v. Townsend, Id. 105 ; McCampbell v. C. S. Co., 144 id. 552; Kimmer v. Weber, 151 id. 417; Watts v. Beard, 18 App. Div. 243.) But the learned trial justice rested his decision in part upon the assumption that the accident of which the plaintiff complains was in. some measure, at least, due to his own negligence, and there is certainly much in the case to support such a conclusion. It must have been perfectly apparent to the plaintiff when he-reached the roof that the ladder which he found there was not. attached to the roof, arid had no other support* than such as was furnished by the cleat against which it rested. If, therefore, it was. insecure, if its adjustment was defective, the plaintiff had quite as; good an opportunity to know that fact as the defendants; and if with this knowledge he assumed the risk, he ought not now to be heard to complain. We do not, however, deem it necessary to discuss this branch of the case, inasmuch as the first ground which we have considered is, in our opinion, sufficient to uphold the nonsuit, and we prefer to rest our decision upon that. - The judgment and order appealed from should be affirmed, with. costs. All concurred ; Spring, J., not sitting. Judgment and order affirmed, with costs.