APPEAL by the defendant, the New York Military Academy Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 2d day of January, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 5th day of February, 1912, as resettled by an order entered in said clerk's office on the 10th day of February, 1912, denying the defendants' motion for a new trial made upon the minutes.
Martin T. Manton [William Dike Reed and Roscoe S. Armstrong with him on the brief], for the appellant.
Graham Witschief, for the respondent.
This case and the case of White v. New York Military Academy Realty Company (151 A.D. 922) were tried
together. The plaintiffs were injured in the same accident and under the same circumstances, and the question involved in the two appeals is identical. For convenience, we will simply consider the case of Patrick Clark, who has a verdict of $5,000, for, upon the determination of his case, we must necessarily rest our decision in the White case.
The plaintiff was employed by the defendant as a scaffold builder. White, the plaintiff in the companion action, was employed in a like capacity as were two others by the names of Barr and McFerran. They were all carpenters of several years of experience, and their work was that of scaffold builders. The actions were brought under the provisions of the Employers' Liability Act, but this claim was abandoned upon the trial, and the case was submitted to the jury upon the theory that in some manner the defendant was liable under the provisions of section 18 of the Labor Law. (See Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18; since amd. by Laws of 1911, chap. 693.) The plaintiff's theory is that he and White were partners--that they worked in team--and that Barr and McFerran constituted a second team, and that the plaintiff and White were not responsible for the acts or negligence of Barr and McFerran, although the testimony does not indicate that the defendant had any notice of this nice distinction in the character of the employment. They were all employed for a common purpose, and all worked to this end, and whether in practice two of them did one part of the work at one time, and two of them another part at another time, we are unable to discover any different rule of law in respect to their conduct than would be applicable in an action at common law. The facts, as they might be found from the plaintiff's evidence, appear to be about as follows:
The work under way appears to have been a building of at least five stories in height. The evidence, so far as we are able to discover, is undisputed that there was plenty of material of a suitable character for the construction of the scaffolds, and these four men had been employed to construct these scaffolds, on which the masons and others performed their work. The scaffolds which had been constructed previous to the accident by these men appear to have been made by building what are
known as figure four brackets out from the windows and placing planks upon them, the two outside planks being nailed to these brackets. These brackets are made by placing a timber upon the window sill, projecting out from the same a sufficient width to hold the planks. Then a brace is fastened to the outside end of this timber on the lower side and then nailed to the side of the building in the form of a figure four. Scaffoldings of this character had been used for a considerable time; the building, we may infer from the evidence, had reached five stories at some point, and was above the fourth story at the point of the accident on the 11th day of July, 1911, when the plaintiff received his injuries. Barr and McFerran, it is claimed, selected the materials and constructed the scaffolding at the third story. When the work was completed at that point brackets were made out of the windows for the fourth story, and plaintiff and White appear to have stood upon the fourth-story scaffolding, and to have raised the planks up from the third to the fourth-floor scaffolding. The work for which the fourth-story scaffolding had been erected was completed, and the plaintiff and White were engaged in the construction of the fifth-story scaffolding, with the assistance of Barr and McFerran, when the accident happened. It appears that at the point of the accident there was a difference in the construction of the building, which required a somewhat different construction of the scaffolding, and to this end a leg had been placed upon one of the brackets which had been left in the third-story window, and this extended upward and formed a part of the support of the fourth-story scaffolding. This leg was put up by the plaintiff and White, who concededly constructed the fourth-story scaffolding, making use of the third-story bracket for the upright leg, and which bracket it is claimed was constructed by Barr and McFerran. On the morning of the accident the plaintiff and White were upon the fourth-story scaffolding, making ready to shift the planks to the fifth story. They were standing out upon the edge of the ledger (the supporting timber of the figure four bracket) when the scaffolding tipped and went down with them, and while no one pretends to know just what happened, the plaintiff's theory, and the only one upon which the recovery can possibly rest, is that a piece of board,
painted red on one side, and used by Barr and McFerran as a brace in the construction of the bracket at the third floor, broke and caused the upright leg to lose its support, and that the whole structure fell by reason of this defective board at the third floor, which the plaintiff and the court concurred in holding to be a scaffolding within the meaning of section 18 of the Labor Law.
Upon this basis of evidence, and upon this theory, the plaintiff has a verdict for $5,000, and his companion has been adjudged to have been injured to the extent of $1,000. But where are we to find the neglect of a duty owed by the defendant to this plaintiff? Here were four competent and experienced carpenters employed specially to construct the scaffolding for the erection of a military academy. They were supplied with an abundance of proper materials for the construction of such scaffolds as should be required, and the theory on which a recovery has been permitted is that two of these four men having selected the materials for the construction of the third-story scaffolding (which appears to have fully served its purpose, and to have been taken away with the exception of one of the window brackets), the defendant became liable because in the construction of further scaffolding the plaintiff and White elected to make use of this isolated bracket for the support of their scaffolding, and that the particular piece of material used as a brace in this bracket, subjected to a strain which was clearly not contemplated in the construction of the third story scaffolding as a whole, broke and caused the scaffolding to fall. This is not the law. Men employed in a common occupation for the securing of a common result, working together without the intervention of a superintendent or any one in authority over them, are still subject to the rule that they accept the risk of the carelessness of competent fellow-servants, and this rule cannot be ...