Jenks v. Thompson

Patterson, J.:

The plaintiff was a carpenter employed by the defendant in and •about the erection of a hotel at Bound Island Park, in the State of New York. He was required, in the course of his employment, to put shingles on the outside of the structure. In order to do his work he had to stand upon a scaffold, which is described as being on the outside of the building, about twenty-five to twenty-eight feet above the ground. It was made of three hemlock boards seven-eighths of an inch thick; two were placed together on the same level and the other on top of them; two boards were ten inches wide each and the other eight inches wide, the whole width of the scaffold being eighteen or twenty inches. The boards of which the scaffold was composed were supported by braces or brackets about nine feet apart, standing out from the windows. The plaintiff was working on this scaffold, trimming shingles that had been nailed on the structure. There was a knot in a shingle and he had to use some upward pressure in cutting through it. While he was in the act of doing so, the knot gave way, the scaffold sprang up and the plaintiff fell therefrom and sustained very serious injuries. The defendant is charged with negligence and a violation of section 18 of the Labor Law (Laws of 1897, chap. 415), such alleged violation consisting in furnishing an unsafe scaffold for the plaintiff to work on It is charged in the complaint that the scaffold was too narrow — the boards composing the same too thin, springy and uneven, and not properly secured by cleats or nails, and that the scaffold was unprovided with a guard or railing and was not properly braced, fastened and secured. The plaintiff had been at work on this scaffold for only three hours, and at the particular place from which he fell he had been at work only a half hour. He testified that when he walked across the scaffold he felt that it was springy. At the close of the plaintiff’s evidence the complaint was dismissed, and from the judgment entered thereon the plaintiff appeals.

It is sought to support this judgment on the ground that the plaintiff assumed the risk of his employment; that he knew the scaffold was unsafe, because he testified that when he walked across it he found it was springy. There is no doubt that the rule with respect to the assumption by an employee of the obvious risks of his employment applies to a case arising under the Labor Law, as well as in an ordinary action for negligence at common law (Knisley v. Pratt, 148 N. Y. 372), which was a case under the Factory Act, but the burden of showing that the employee assumed the risk of obvious dangers rests upon the employer. (Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459.) If the proof is made by the plaintiff, of course that will suffice, but in this case it cannot be said that this scaffold was obviously an unsafe appliance. The plaintiff found it springy, but that was not alone the cause of its being unsafe. It was only at the utmost twenty inches in width, and its narrowness in combination with the springiness of the material may have rendered it unsafe, and when the plaintiff lost his balance by reason of the boards rebounding when the pressure was taken off by the giving way of the knot in the shingle the very narrowness of the structure may have been the reason for the plaintiff falling off. It cannot be said that it must be assumed that it was patent to the observation of the plaintiff that the scaffold was too narrow to be safe, and it cannot be held, as matter of law, that the risk of falling off the scaffold, under the circumstances described by the plaintiff, was voluntarily assumed by him..

If that view of the case is correct, then it became a question of fact as to this scaffold being a safe and adequate one within the meaning of the Labor Law. The plaintiff attempted to show that it was not, and asked an expert witness a series of questions directed to eliciting his opinion on the subject. The witness was not permitted to answer the questions, and the rulings of the court "were excepted to. Such rulings were erroneous. The testimony was excluded evidently on the theory that opinion evidence was not admissible to prove a fact in issue, which it was the province of the jury to pass upon and not of an expert witness. It is sought to support that theory upon the ruling made in Dougherty v. Milliken (163 N. Y. 527). In that case the testimony of witnesses who were called upon to express an opinion as to a scaffold being constructed so as to be safe and as to its being properly placed was declared to be inadmissible, but that was held only as applying to the particular facts of that case. In Finn v. Cassidy (165 N. Y. 584) it was held that expert testimony is admissible in a case of this character where the questions asked are based upon facts and the disclosure is made of the whole situation as to a reasonably safe place being provided in which an employee is to work. The case of Dougherty v. Milliken (supra) is considered in the opinion of the court, and it is shown that that decision rested upon the consideration that there was not a single fact made to appear upon which the charge of negligence could rest, and that that circumstance alone would have justified the decision, and, further, that there were no facts shown upon which an expert could properly base an opinion, and that the questions were insufficient and improper in form to lay the foundation for such opinions.

In the case at bar the skilled witness called by the plaintiff was asked whether, in his opinion, a scaffold so constructed of boards that either end of the boards rested upon supports about nine feet apart and that the boards were of hemlock seven-eighths of an inch in thickness, the scaffold consisting of three boards, two together and one on top of the other two, one board being ten inches wide and another six inches wide, and another ten inches wide, was so constructed as to furnish a safe and proper place on which a workman might work, supposing him to be a man of about 118 or 120 pounds in weight (which was the plaintiff’s weight) employed in the business of trimming off shingles in the manner described. He was further asked if a scaffold, such as described and constructed and used, was, in his opinion, a safe, suitable or proper scaffold so constructed as to give proper protection to the life or limb of the person employed or engaged upon it.

Those questions should have been answered. The conditions as to material, the placing of the material, the thickness of the planks, the width of the scaffold and the weight of a person upon it and the nature of the work required of such person, furnished the data that were lacking in Dougherty v. Milliken.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

O’Brien, J., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.