Matthes v. Kerrigan , 1 N.Y. St. Rep. 705 ( 1886 )

By the Court.

Sedgwick, Ch. J.

The action was for damages to plaintiff, caused as alleged by defendant’s negligence in furnishing to plaintiff a scaffold, on 'which to work in trimming stone in the front of a building. The scaffold fell from the giving way of the cornice of the building over which the ropes that supported the scaffold ran. The witnesses for plaintiff testified that the cornice gave away because the wood of which it was made was rotten.

In my opinion the complaint was properly dismissed. The plaintiff was not the servant of defendant. He and another had contracted to trim the stone front for a lump sum. By the contract, they were to furnish a scaffold on which they were to do their work. This shows that they were competent judges of the sufficiency of the scaffold and of the safety or unsafety of the way in which it might be hung. They were as competent as the defendant. For a reason, as to which there was some conflict of evidence, the plaintiff and his partner did not furnish the scaffold. The defendant offered to and did furnish and hang it, or rather allowed the plaintiff to use a scaffold that was hung by the painter employed by the defendant. The plaintiff was not, in any way disclosed by the testimony, induced by the defendant to omit to examine the security of the cornice. He and his partner had the same means of ascertaining its condition that the defendant had. There was no testimony that it appeared to be rotten. If that had appeared, it would have been apparent to the plaintiff, or his partner. They incurred no other risk than was contemplated by their original contract. The testimony shows that the action of the defendant, in helping the plaintiff and his partner to a scaffold was not meant by him, or understood by them to relieve them of any other duty or care than the furnishing of the scaffold as it was. From all the facts, I infer that if there were an omission of careful observation of the cornice, the omission was as really by the plaintiff as by the defendant.

It was also proved by the painter who hung the scaffold, who was in all respects as credible a witness as any who testified for plaintiff, that he Was used in his business to hang scaffolds of the kind ; that in hanging the one in question he used care, and that there was no appearance of the cornice being unsafe.

Judgment affirmed with costs.

Trtjax, J., concurred.