ROBINS DRY DOCK & REPAIR CO. v. DAHL.

Defendant in error Dahl brought an action against the Robins Company—plaintiff in error—a New York corporation, in the Supreme Court, Kings County, New York, to recover damages for personal injuries. He alleged: That on February 2, 1920, while employed by the Robins Company and doing repair work on the steamer El Occident, then lying in navigable waters at Brooklyn, a plank scaffold on which he was walking or standing broke and caused him to fall into the hold. That he sustained serious injuries caused solely by and through negligence in that the company did not furnish a safe place to work and failed to provide a safe scaffold as required by the labor laws of the state of New York, but negligently and carelessly furnished an unsafe, inadequate and unsuitable scaffold and plank.

'This is what we call a maritime tort, an action in negligence that is governed by the maritime laws, the admiralty laws, the laws that pertain to navigable waters in this country. * * * The law permits even a maritime case, such as should ordinarily be brought in the United States court, to be tried in a state court. But the maritime law is applied, and those maritime laws are known by lawyers as the common law. * * *

'Under the common law the same rule applies in this case as the rules that I have laid down to you, that the burden is upon the plaintiff to prove that the defendant was negligent, and that he himself was free from any contributory negligence. In this case, however, comes a provision known as section 18 of the Labor Law, and section 18 of the Labor Law [Consol. Laws, c. 31] reads as follows: 'A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.'

'The decisions hold that section 18 of the Labor Law does not make an employer, as we term him, the 'master,' in this case the defendant, an insurer of the scaffold—and this plank within the meaning of the law is a scaffold—it does not make the master an insurer of the safety of the scaffold under all conditions; it requires the scaffold to be so safe as to give proper protection to the workmen engaged in their duty. However careful the master, he is responsible unless the scaffold is in fact a proper one, proper to protect the workman in the performance of his work. No law of the state can modify or affect the rights of workmen who are operating under the maritime law. And it has been held that this section 18 of the Labor Law does not modify or affect the law, but may be read in conjunction with the law.

'And as I understand the law to be, in determining in this case whether the defendant was negligent—for the plaintiff must still prove that the defendant was negligent—you must have in mind that there was in existence in the state a law which imposed upon the defendant the burden and the necessity of providing a scaffold that was proper for the workman to work upon. And in this case, in the light of that law, you must determine whether the defendant knowing the law, as it was called upon to know it, acted negligently, and whether or not the plaintiff has proved, by a fair preponderance of evidence, that it acted negligently.

'If you find that in view of section 18 of the Labor Law the defendant did act negligently, then you go to the next proposition. If you find that it did not act negligently, that ends this case, and you must render a verdict in favor of the defendant. Assuming, for the purpose of bringing to your attention all of the law in the case, that you find under these circumstances the defendant was negligent then you come to the next proposition, was the plaintiff free from negligence that contributed to the injury. If he was free, then he is entitled to a verdict. If he did something that contributed to the injury, then he is not entitled to a verdict.'

Proper exceptions were noted. Judgment went for plaintiff Dahl and this was approved upon appeal. The plaintiff in error maintains that the trial court committed material error by instructing the jury as above stated. On the other side the claim is that the challenged instruction only permitted the jury to consider violation of the state law as evidence of negligence and did not therefore materially affect the question of responsibility.

The alleged tort was maritime, suffered by one doing repair work on board a completed vessel. The matter was not of mere local concern, as in Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469, 476, 42 S. Ct. 157, 66 L. Ed. 321, 25 A. L. R. 1008, but had direct relation to navigation and commerce, as in Great Lakes Dredge & Dock Co. v. Kierejewski, 261 U. S. 479, 43 S. Ct. 418, 67 L. Ed. 756. The rights and liabilities of the parties arose out of and depended upon the general maritime law and could not be enlarged or impaired by the state statute. Chelentis v. Luchenbach Steamship Co., 247 U. S. 372, 382, 38 S. Ct. 501, 62 L. Ed. 1171; Union Fish Co. v. Erickson, 248 U. S. 308, 39 S. Ct. 112, 63 L. Ed. 261; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149, 40 S. Ct. 438, 64 L. Ed. 834, 11 A. L. R. 1145; Carlisle Packing Co. v. Sandanger, 259 U. S. 255, 259, 42 S. Ct. 475, 66 L. Ed. 927. They would not have been different if the accident had occurred at San Francisco.

The jury were distinctly told that they might consider the provisions of the local law in deciding whether or not the employer was negligent. No such instruction would have been permissible in an admiralty court, and it was no less objectionable when given by the state court. The error is manifest and material. See Central Vermont Railway Co. v. White, 238 U. S. 507, 511, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252; New Orleans & N. E. R. R. Co. v. Harris, 247 U. S. 367, 371, 38 S. Ct. 535, 62 L. Ed. 1167; American Railway Express Co. v. Levee, 263 U. S. 19, 21, 44 S. Ct. 11, 68 L. Ed. 140.

The judgment must be reversed.