Opinion
March, 1906.
Frank A. Acer, for appellant.
Frederick E. Fishel, for respondent.
This action is brought to recover damages for personal injuries received by plaintiff while in defendant's employ.
It appears from plaintiff's testimony that, on the 17th day of July, 1905, the plaintiff was employed by the defendant and, on that day, was working upon the interior of a building known as the Harvard Club, on Forty-fifth street, between Fifth and Sixth avenues, for the construction of which building the defendant held a contract. It also appears that, in the performance of the work to which he had been assigned, it became necessary for him to go upon a scaffold that had been erected by defendant in said building, at an elevation of about sixteen feet above the stone floor, and that said scaffold was about fourteen feet long and about fifteen inches wide and that the scaffold was reached by a ladder.
It appears that one Dorward, a fellow servant, was working directly over and above plaintiff, on a stone shelf or coping, projecting from the face of the wall, that was of the width of about ten inches. Dorward, while working on the shelf or coping, lost his balance, fell therefrom down to and upon plaintiff; and both were precipitated to the floor or pavement. Dorward testified that he was using a bar to put the stone a little further: "It was off joint, the point was too big and the bar slipped and it came backward and I fell right off the top and I struck Madin (plaintiff) and he went right down."
At the close of plaintiff's case, defendant moved to dismiss plaintiff's complaint, which motion was granted by the trial justice, and from the ruling this appeal is taken.
It is contended by appellant that the scaffold used by the plaintiff was not so constructed, placed and operated as to give proper protection to plaintiff's life and limb. He, however, concedes that the scaffold used did not fall nor the accident result from structural weakness or defective material used in the construction of the scaffold.
The case of Stewart v. Ferguson, 164 N.Y. 553, cited by appellant, has no application. In that case the scaffold fell, and the court held that, both under the Labor Law as well as upon the theory of negligence, plaintiff could recover. In this case, however, the plaintiff testified that the scaffold remained.
It is apparent that the falling of a coservant was the proximate and direct cause of the accident. Defendant violated no statutory duty toward the plaintiff, and there was no evidence that there was any negligence of the defendant.
SCOTT and O'GORMAN, JJ., concur.
Judgment affirmed, with costs.