Opinion
May 8, 1912.
Daniel J. Finn and Walter A. Chambers, for the appellant.
Rosendale Hessberg [ Peter A. Delaney of counsel], for the respondent.
From the evidence the jury would have been justified in finding that the plaintiff was injured by falling or jumping from a ladder placed against the defendant's dredge. The ladder was about twelve feet long, securely made. One end rested on the top of the dredge; the other upon the ground about six feet from the dredge. The ground was uneven, sloping lengthwise the dredge, so that while one foot of the ladder rested upon the ground the other would not touch the ground, and to secure it a block about fifteen inches long and three inches thick and six inches wide was placed under the other leg so that the ladder would rest evenly against the dredge. There was no fastening at the top or bottom of the ladder. It had been used in the same place for a week or two, and from fifty to one hundred men had gone up and down it in going to and from their work on the dredge. No other means of access was provided for the men to ascend from the ground to the top of the dredge. The dredge was being rebuilt.
The plaintiff was directed by the defendant's foreman to go upon the dredge and do some caulking, and carried his tools with him, the foreman accompanying him. After working sometime, when descending the ladder with his tools in a keg under one arm and a camp chair in the other, the ladder slipped. He pulled it back into place and went down another step and it slipped again, slipping off the block at the bottom. The plaintiff jumped or fell backwards when he was about eight feet from the ground, and sustained certain injuries. He was nonsuited, apparently upon the authority of Kelly v. National Starch Company ( 142 App. Div. 286). I do not think that case is conclusive here.
Upon the evidence I think the jury would have been justified in finding that the defendant did not furnish a ladder so placed as to give protection to the life and limb of its employee as provided by section 18 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36). The ladder having been used in the same place and in the same position for one or two weeks for the defendant's employees to pass from the ground to their work, the jury may well have considered it a part of the ways of the defendant under section 200 of the Labor Law (as amd. by Laws of 1910, chap. 352). We may infer that the ladder in the Kelly case was not permanently placed by the defendant for the general use of its men in passing to their work, but was a ladder in use for general purposes wherever a ladder might be required. For that reason the court treated it as an appliance for use rather than as a ladder forming a part of the structures or ways of the defendant.
We are not considering the merits of the case or the sufficiency of the evidence, but only hold that with the most favorable view of the evidence it was a question for the consideration of the jury in the first instance. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except HOUGHTON and BETTS JJ., dissenting.
Judgment reversed and new trial granted, with costs to appellant to abide event.