The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
These are two motions to set aside the verdicts rendered by the Jury (1) in favor of the plaintiff against the defendant, (2) in favor of the third party plaintiff against the third party defendant.
The long delay in this matter is due to the fact that the briefs did not come to me until May 8, 1940.
The facts are substantially the same, but there are differences in some of the questions of law presented on each of the said motions.
The above entitled action was tried before me with a Jury and after a trial occupying twelve days a verdict was rendered in favor of the plaintiff against the defendant for $35,000, and a verdict was likewise rendered in favor of the third party plaintiff against the third party defendant for the same amount.
Both defendants joined in motion (1) to set aside the verdict and to dismiss the complaint, or direct a verdict for the defendants, or for a new trial.
Motion (2) was made by the third party defendant on the ground that it is contrary to law.
Decision on said motions was reserved by me and permission was granted to counsel for all parties to submit briefs in support of their respective contentions.
The plaintiff was a window cleaner employed by the third party defendant and engaged in the cleaning of windows on a building owned by the defendant, which was a public building, as defined by the Labor Law, and while so engaged was injured by the fall of the scaffold, on which he and another man were working, due to the parting of a rope, which supported the end of the scaffold on which the plaintiff was working.
The cleaning of the windows in the defendant's building was being done by the third party defendant, its agents or servants, the plaintiff being its leading workman or foreman, under a contract with the defendant and third party plaintiff.
The plaintiff was acting under the orders of the third party defendant which furnished the scaffold and rope in question.
Plaintiff contends that the accident was caused solely by reason of the unsafe condition of the rope on the swinging scaffold, which parted, and which was neither made, nor purchased, by the defendant, but was furnished by the third party defendant for the performance of the contract, it had made for the cleaning of the windows of the defendant's building.
Recovery is sought by the plaintiff in this case, against the defendant, not because of any general or common law negligence, but, solely because of a liability claimed to be imposed by a Statute of the State of New York, the Labor Law, constituting Chapter 31 of the Consolidated Laws, Section 202, as amended by Laws 1937, c. 84, § 2, as in effect on October 14, 1937, the date of the accident, which reads as follows:
"§ 202. Protection of persons engaged at window cleaning. On every public building where the windows are cleaned from the outside, the owner, lessee, agent, manager or superintendent in charge of such building shall provide, equip and maintain approved safety devices on all windows of such building. The owner, lessee, agent, manager or superintendent in charge of any such public building shall not require, permit, suffer or allow any window in such building to be cleaned from the outside unless means are provided to enable such work to be done in a safe manner in conformity with the requirements of this chapter and the rules of the industrial board. Every employer or contractor shall require his employee while engaged in cleaning any window of a public building from the outside, to use the equipment and safety devices required by this chapter and the rules of the industrial board. No person shall clean any window of a public building from the outside unless the equipment and safety devices required by this chapter and the rules of the industrial board are provided for his protection and used by him while engaged at cleaning such window.
"The industrial board may make rules supplemental to this section by designating safety devices of an approved type and strength to be installed on public buildings or to be worn by window cleaners or both, but the absence of any such rules shall not relieve any person from the responsibility placed upon him by this section."
The safety equipment and devices provided for by the rules of the Industrial Board, adopted pursuant to the statute, were (1) ladders, (2) sectional ladders, (3) swinging scaffolds, (4) boatswains chairs, or (5) belts, terminals and anchors.
The building in question was a public building, as defined by the statute, and the said defendant was the owner "in charge" and in control of the said building.
The only safety equipment, hereinbefore referred to, used in the cleaning of the windows on defendant's building with which we are concerned was the swinging scaffold, although a boatswains chair was also used, but played no part in the injuries to the plaintiff, of which complaint is made in this action.
As to the swinging scaffold no complaint is made as to any part of it, except the rope sustaining it on the end where plaintiff worked, therefore, the principal question in this case is whether the said rope, provided for the work, that parted, was an adequate and safe rope for use on said scaffold to sustain the weight of the scaffold, the men working thereon, and the materials, which would be expected to be used thereon.
The right and duty of this Court to set aside the verdict, if it was clearly against the weight of the evidence, needs no citation of authority.
On this motion, however, the Court must assume, as established, all the facts that plaintiff's testimony reasonably tends to prove, together with all inferences in plaintiff's favor which may fairly be drawn from the facts. Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 74 L. Ed. 720.
It is not a sufficient ground for a new trial that a verdict is merely against the preponderance of the evidence, but it must be so clearly against the evidence as to compel the conclusion that the verdict is contrary to right and Justice. Mt. Adams & E.P. Inclined Ry. Co. v. Lowery, 6 Cir., 74 F. 463, 465, 473.
It is contended on behalf of the defendants that Section 202 of the Labor Law, supra, is unconstitutional and that properly construed it imposes no liability on the defendant American Chicle Co.
With these contentions I cannot agree, because I am bound by the decision of the Circuit Court of Appeals of this Circuit in Osborne v. Salvation Army, 107 F.2d 929.
The breach of the Statute, pleaded in this case, is the permitting suffering or allowing by the owner of the building, the defendant American Chicle Co., the windows to be cleaned on the outside by the plaintiff without there being provided a safe rope for the scaffold, and I held and so charged that such a breach of a Statutory provision constituted negligence as a matter of law.
This, it seems to me, is in accord with the holding of the Circuit Court of Appeals in Osborne v. Salvation Army, supra.
The language of Section 202, supra, is very broad, and I believe broad enough to cover in the case at bar.
I am not unmindful of the contention that by the section in question the Legislature sought only to make the failure of the owner of the building guilty of negligence if he failed to provide those things which were a part of the building and customarily used in outside window cleaning. The language of the Section, however, is much broader than would have been necessary for the accomplishment only of that purpose, and the purpose of the Legislature seems to me to have been to make the owner, lessee, agent, manager or superintendent in charge of the building liable if he or they permitted, suffered or allowed any window in such building to be cleaned from the outside unless means were provided to enable such work to be done in a safe ...