APPEAL by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 16th day of February, 1911, upon the verdict of a jury for $1,800, and also from an order entered in said clerk's office on the 10th day of January, 1911, denying the defendant's motion for a new trial made upon the minutes.
Terence Farley [Harry Crone and Archibald R. Watson with him on the brief], for the appellant.
Jeremiah A. O'Leary, for the respondent.
The plaintiff has framed his complaint upon a rather confused conception of the Employers' Liability Act, and the case appears to have gone to the jury in harmony with the complaint.
After setting out the time of the accident the complaint alleges that the plaintiff was in the employ of and working for the said defendant in a certain surveying corps at or near certain premises known as the Prairie Grass Furniture Company, at Glendale, L. I., city of New York, and that 'at the time and place aforesaid, plaintiff, through the negligence of the defendant and its servants exercising superintendence or acting as superintendent, was severely injured,' etc., and that 'On information and belief, the aforesaid negligence of the defendant and its servants consisted in furnishing and maintaining defective ways, works and other appliances connected with or used in the business of the said defendant; in failing to see and maintain the said ways, works or other appliances in a safe and proper condition; in failing to furnish plaintiff with a safe place to work; in failing to warn the plaintiff of the defective and dangerous condition thereof, and directing the plaintiff to work thereon; in furnishing plaintiff with an insecure, unsafe and defective ladder, and in failing to properly inspect, discover, remedy and maintain the same so that plaintiff could safely and securely perform his work.' The complaint then alleges that by reason of the aforesaid premises and the result thereof, the said ladder upon which plaintiff was engaged broke, and plaintiff was thrown or caused to fall a distance of about twelve feet, receiving bodily injuries as aforesaid. Then the service of the notice required by the statute is set up, and the plaintiff demands judgment.
A ladder at common law is a simple appliance, which the servant uses with the same degree of responsibility that he handles a lever, a wheelbarrow or any other simple contrivance, and the only modification of this rule is to be found in the provisions of section 18 of the Labor Law, which provides 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 or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper
protection,' etc. (See Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 18; now Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18, as since amd. by Laws of 1911, chap. 693.) Obviously the present case does not come within the statute, for it appears here that the plaintiff was a part of a corps of surveyors, running lines across country, in nowise connected with the construction of any building. A ladder is a tool or appliance, and it is the duty of the master, having occasion to put men at work where such appliances are necessary, to use reasonable care to supply suitable tools and appliances. But in the case at bar the plaintiff was a part of a surveying corps. No ladders were furnished by the defendant, for the obvious reason that ladders do not, generally speaking, constitute a part of the equipment of a surveying party engaged in running cross country lines. It happened, however, that on the day of the accident a certain building stood in the way; that it became necessary to get upon the top of the building to make triangulations, and that one of the party, who is alleged to have been the defendant's superintendent, finding a ladder against the building, suggested or ordered that the plaintiff, with others who had preceded him, should climb this ladder and carry up the surveying implements. The plaintiff, with an appliance weighing about thirty-five pounds, attempted to climb the ladder, and when a portion of the way up one of the rounds of the ladder gave way, and when he grabbed at a second round to save himself, this likewise gave way and the plaintiff fell to the ground, sustaining injuries.
Of course, at common law there could be no recovery, for the master did not furnish the ladder and owed no duty to furnish a ladder, and the alleged direction of the so-called superintendent would be merely the negligence or the error in judgment of a fellow-servant. Under the Employers' Liability Act it is necessary to show that the ways, works or machinery connected with or used in the business of the employer were defective, or that the accident was produced by 'the negligence of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent
with the authority or consent of such employer.' (Laws of 1902, chap. 600, § 1; now Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200, as amd. by Laws of 1910, chap. 352.) Obviously this ladder was not furnished by the master, but presumptively by the owners of the building, upon private property, where it was found and made use of, just in the sense that a fence, or a platform, or an elevation of ground or any other physical condition come upon in the course of the survey would have been used. Being a common-law appliance, and being one of the hundreds of physical conditions encountered in the survey, the defendant could not be said to use it in its business, and the contention upon this point is absurd.
There is no allegation in the complaint bringing the case within the language of the statute, in so far as it relates to the alleged negligence of the superintendent. The allegation of the complaint is not that the accident was due to the negligence of a 'person in the service of the employer, entrusted with and exercising superintendence whose sole or principal duty is that of superintendence,' or that such superintendent being absent, it was through the negligence of 'any person acting as superintendent with the authority or consent of such employer.' It is merely alleged that 'through the negligence of the defendant and its servants exercising superintendence or acting as superintendent' the plaintiff was injured. There is no allegation that the alleged superintendent was 'entrusted with' superintendence, or that this 'sole or principal duty' ...