Sozansky v. Interborough Rapid Transit Co.

117 N.Y.S. 201

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 27, 1909
• Status: Published

Opinion

LEHMAN, J.

The plaintiff, an iron worker, was injured by reason of a defect in the scaffolding on which he was working beneath the elevated railway structure of defendant. The jury brought in a verdict for the plaintiff, and the trial judge has set aside the verdict, on the ground that the plaintiff participated in the erection of the scaffolding, and the employer cannot be held responsible, where ne nas furnished his workmen with suitable materials for the construction of a scaffold, and they then perform the work of construction, and one of them is injured by reason of the defective manner in which it is. constructed.

I agree with the trial judge in this statement of the law but the serious question is whether the plaintiff did actually participate in the construction. He has himself testified that he did no work in the erection of the scaffold, but that he handed up some lumber to the other workmen. If he did this casually, and not as part of his work, I do not think it would constitute a participation in the erection of the scaffold. On the other hand, if he was one of the gang of workmen erecting the scaffold, then in legal effect he participated in the erection of the scaffold, and should not be allowed to recover. The trial justice has so found upon all the circumstances of the case. The question is one of fact, and should have been originally determined by the jury; but the case was submitted to them under a charge and theory in which this question did not come before them. I think, therefore, that, even though we believe that it cannot be said as a matter of law that the plaintiff participated in the construction of the scaffold, the trial justice was correct in setting aside the verdict and granting a new trial.

Order affirmed, and new trial granted, without costs on this appeal. All concur.