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Smith v. Variety Iron and Steel Works Co.

Supreme Court of New York, Appellate Division

November 22, 1911

THOMAS SMITH, Respondent,

APPEAL by the defendant, The Variety Iron and Steel Works Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 16th day of February, 1911, upon the verdict of a jury for $3,000, and also from an order entered in said clerk's office on the 21st day of February, 1911, denying the defendant's motion for a new trial made upon the minutes.


Carlton E. Ladd, for the appellant.

Ray M. Stanley, for the respondent.


The plaintiff, a workman, was at work upon a scaffold, which broke through weakness. He fell and was hurt through no fault of his. We may also assume, as defendant contends, that the weakness of the scaffold was not discoverable by any reasonable inspection, as the trial court held that the defendant

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was bound to furnish a safe scaffold irrespective of that fact. The details of the casualty are fully set forth in the opinion of the presiding justice.

The question here is whether the workman or his employer shall bear the pecuniary loss resulting to the workman from the injuries so sustained by him. The answer to that question is found in the provision of the Labor Law which forbids an employer to furnish a scaffold for the performance of work such as the plaintiff was doing, which is unsafe, unsuitable or improper and which is not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged; and as a precaution further requires the scaffold to bear four times the maximum weight required to be dependent therefrom or placed thereon when in use. (Labor Law, § § 18, 19.) That this scaffold did not answer the requirements of the statute seems plain. It was being used in the ordinary way and was not subjected to any unusual strain. It failed to carry the weight it was expected to carry. Indeed, it is hardly claimed that it was safe, but the defendant seeks to avoid liability because the weakness was of such a character as not to be discoverable by any ordinary inspection.

I think that will not save the defendant from liability. There was an absolute duty imposed by law upon it to furnish a safe and proper scaffold. ( Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415; Gombert v. McKay, 201 id. 27.) As is said in the case last above cited: 'The statute broadens in a substantial and important degree the liability of the class of employers designated by it. It, in terms, absolutely forbids those employers to furnish or operate, or cause to be furnished or operated, any apparatus therein mentioned of the character and quality described by it. It, in its effect, provides that any employer who either personally, or by another, furnishes for the performance of any named labor a forbidden article shall be responsible therefor.'

But it is said that the Court of Appeals did not intend to so hold, and that in any event that doctrine has been repudiated in the recent case of Ives v. South Buffalo Railway Co. (201 N.Y. 271). I do not so understand that decision. Indeed, I think what is said by Judge WERNER in the Ives case confirms

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rather than repudiates the doctrine of the former decisions of that court relating to the duty of an employer to furnish safe appliances, such as scaffolds as provided by the Labor Law.

It was there argued in support of the validity of the Workmen's Compensation Act that if it was competent for the Legislature to make an employer liable for the consequences of an unsafe implement, it was competent to enact the compensation act. Judge WERNER, in referring to that argument, says ( Ives v. South Buffalo Railway Co., supra, at p. 303): 'In this argument the learned counsel ignores, or at least misses, as we think, the vital distinction between legislation which imposes upon an employer a legal duty, for the failure to perform which he may be penalized or rendered liable in damages, and legislation which makes him liable notwithstanding he has faithfully observed every duty imposed upon him by law.'

The defendant is not held liable for injuries to its workmen occasioned without any fault upon its part. It was at fault in furnishing a scaffold which was not safe, as the statute required it to do. While the scaffold appeared to be safe it was, in fact, insecure. Under the law the employer became responsible for the safety of the scaffold when he directed the workmen to use the scaffold. It may have been competent for the workman to assume the risk, but he did not, and the provisions of the statute ...

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