Summary
In Smith v. Green Fuel Economizer Co. (123 App. Div. 672) an employee fell from a ladder upon a shaft, and the Second Department, Appellate Division, reversed the judgment in his favor, applying the same rule laid down by SPRING, J., above, and citing that case and the cases therein referred to. And in McMillan v. Minetto S.C. Co. (134 App. Div. 28) an injury to an employee resulted from a fall caused by a cleat upon a board working loose in its use. He could have observed the loosening of the cleat and have tightened it up.
Summary of this case from Kelly v. National Starch Co.Opinion
January 10, 1908.
Eugene Lamb Richards, Jr. [ Rutherford B. Meyer and Frank Verner Johnson with him on the brief], for the appellant.
Charles Morschauser, for the respondent.
The deceased, an expert machinist, worked in the defendant's machine shop. He put a ladder up against a shafting and went up to put a belt on a revolving pulley. He leaned his body over to the right away from the ladder, and with his extended right hand was trying to force the belt on the pulley, when the ladder tipped sidewise and threw him upon the shaft and to the floor, killing him. In place of moving the ladder over close to the pulley, the deceased leaned over so far that he tipped the ladder over. There was nothing to go to the jury and the motion to dismiss should have been granted. There was some evidence that the ladder was to some extent warped, so that it was not so exactly true that if you put it up against a wall all four points would touch at once; but the accident did not happen from that. Moreover, the deceased had been in the habit of using the ladder and was as competent as any one else to say it was safe. The rule of employer's liability applicable to complicated and dangerous machinery does not apply to simple things like ladders ( Marsh v. Chickering, 101 N.Y. 396; Cunningham v. Peirce, 112 App. Div. 65; Hart v. Village of Clinton, 115 id. 761); and also there were other ladders present for use that were not warped, and the deceased should have taken one of them if the one he used was really unfit ( McConnell v. Morse I.W. D.D. Co., 187 N.Y. 341).
There was some evidence about the floor of the shop being to some extent greasy, but only as is necessarily the case in all machine shops; and yet the learned trial judge spoke of that to the jury, and apparently left them to find a verdict for the plaintiff on that ground; but the accident did not happen from a greasy floor, nor is there any allegation in the complaint that it did, nor was there any proof that the floor was dangerous from grease.
The judgment should be reversed.
WOODWARD, JENKS, HOOKER and MILLER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.