impossible, nevertheless qualified his answers to such a degree as left the master without clear proof to support its proposition. The credibility of the witnesses was for the jury. In the face of such condition of proof we cannot say that the master made out its proposition so as to establish either its freedom from negligence or contributory negligence as matters of law. It is clear enough that the servants were under pressure from their immediate foreman to do a certain amount of work at riveting within a specified time, and that for that reason the plaintiff and his fellows, hurrying to adjust the scaffold, took the quickest method. The master did not attempt to support its theory of safer method by any further proof save inquiry from its foreman, Roberts, as to custom. But when the learned court, under objection, ruled out the inquiry, the ruling was not excepted to. The circumstance that the plaintiff helped in the adjustment, or undertook it, did not necessarily bar his recovery. (Warren v. Post & McCord, 128 App. Div. 572; affd., 198

N. Y. 624).

We think that under the law of this case, as stated by the court and accepted by the parties, the proof was sufficient to warrant that the master was negligent in the construction of the scaffold, and, therefore, that the judgment and order must be affirmed, with costs.

Present: Jenks, P. J., Carr, Mills, Rich and Putnam, JJ.

14. LIABILITY AS BETWEEN CONTRACTOR AND SUBCONTRACTOR

USING

PETER KEELER BUILDING Co. v. TITCHENER, 190 App. Div. 135 (Dec. 29, 1919), abstract.

A building company had a contract with the State of New York to erect a building for it at the State Fair grounds. The building company later entered into an agreement with another company to do certain work on the building. By the terms of the agreement the building company was to furnish and erect the scaffolds. While defendant's workmen were engaged in their work and while on the scaffold it collapsed, and one of the employees thereon was seriously injured. An action was brought by him against the building company and a judgment recovered. The building company then brought an action against the injured employee's employer to recover over the amount of the judgment which it had paid. It appeared clearly in the action that the scaffold was defectively built and that the accident was due to faulty construction, in that it was incapable of carrying the load which was intended to be carried. Reversing a judgment for the plaintiff the court held that the action could not be maintained as the plaintiff was the primary wrongdoer, although the defendant may have overloaded the scaffold under the circumstances.

15. TEMPORARY PLATFORM BETWEEN GIRDERS OF BRIDGE AS NEW YORK, N. H. & H. R. Co. v. MOONEY, 223 Fed. 626, 139 C. C. A. 172 (April 13, 1915), abstract.

A temporary platform on which plaintiff was working consisted of a plank placed between two girders. Plaintiff was painting the iron work of an unfinished bridge. In the course of his work it was necessary for him to lie down on a plank resting on portions of the iron work, so as to reach the under part of the girder. Customarily, ropes were used to lash the planks to prevent their tilting or tipping. It was Saturday afternoon when plaintiff asked for ropes, but the foreman told him the ropes would be furnished the following Monday. Shortly thereafter the plaintiff was injured by the tilting or tipping of the plank. The United States Circuit Court of Appeals held that the platform in question was a "scaffolding," and that, as such, it was "unsafe, unsuitable or improper," and not so constructed as to give proper protection to the life and limb of a workman thereon such as the New York Labor Law required.

16. ORIGINAL DEFECT CAUSING INJURY WHILE DISMANTLING A question has been raised whether an employer is liable under the Labor Law for an injury to an employee while dismantling a scaffold, which injury resulted from a defect in the original construction due to the negligence of a fellow employee. It has been held that the determination of such question is for the jury. JOHNSON V. NEW YORK CITY, 165 App. Div. 697 (Jan. 15, 1915) abstract.

Plaintiff's decedent was a painter and rigger in defendant's bridge department. While assisting in dismantling a scaffold which had been erected by himself and another employee it appeared that the scaffold had been improperly and negligently constructed, and that it had been maintained by the defendant in an unsafe condition until decedent and his fellow employer started to demolish it. It also appeared that even though the scaffold was unsafe, its demolition could have been accomplished by the use of a ladder safely, and that the foreman directed decedent and his fellow servant to get a ladder, which was only a short distance away. The trial court dismissed the plaintiff's complaint at the close of the evidence. The Appellate Division

reversing the judgment, held that while the defendant was not liable for injury caused by the tilting of the "spar" due to the negligence of decedent's fellow servant, yet, since the scaffold had been maintained by the defendant in an unsafe condition from the time of the negligent construction, the plaintiff was entitled to have the question of defendant's liability under section 18 of the Labor Law passed upon by the jury.

On further appeal to the Court of Appeals, the following memorandum opinion, affirming the judgment, is given in full, from 218 N. Y. 98 (June 13, 1916.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 15, 1915, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant, his employer. The intestate was, and for some years had been, employed by the city in its bridge department as a painter and rigger. At the time of the accident, in the course of his duty, he was upon one of a pair of spars suspended by a block and fall under the structure of the Brooklyn bridge over Main street. These spars constituted the framework of a scaffold which had been completed by laying loose boards across the spars to make a footing for the painters. The work of applying the paint to that particular portion of the bridge structure was finished, all the planks except one had been removed and plaintiff was seated astraddle of the spar using the one plank left to steady himself while he removed certain center lines, called belly lines. The fastening of the supporting rope attaching one end of the spar upon which the intestate was seated to the hook in the block was defective and gave way and the spar fell at that end, precipitating the intestate to the pavement of the street and causing injuries from which he died.

The principal questions are: (a) Whether the spars, block and fall, and plank which the intestate was using as a support at defendant's instance while he untied the belly lines, constituted a scaffold ("or other mechanical contrivance") within the meaning of section 18 of the Labor Law; and (b) whether this work of untying the belly lines preparatory to lowering and removing the spars constituted "labor of any kind in the painting" of the bridge structure within the meaning of the same provision.

*

Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

17. WHEN NECESSARY

In an action brought under the Employer's Liability Act, the question whether a scaffold should have been provided by the

employer for the plaintiff, who was injured while at work in the erection of a building, was discussed by the Court of Appeals.

BIDWELL V. CUMMINGS, 217 N. Y. 542 (April 11, 1916), abstract.

The facts which could have been found by the jury were that the defendant, through a superintendent in charge, was engaged in erecting a building. A part of the main walls of the first story of the building had been completed, and consisted of four inches of brick on the inside and twelve inches of tile on the outside, with an air space of two inches. At the time of the injury the wall was nine or ten feet high. There was a partition wall the same height erected parallel to and fifteen feet inside of the main wall. A doorway was placed in the main wall and a door frame placed therein. Over the doorway a "header" was to be placed, into which the joists opposite the doorway were to be mortised. Along the top of the main wall boards were placed. These boards were about seven-eighths of an inch thick and five or six inches wide. One of the boards extended over the door frame or opening in which the door frame was placed, the end being placed against the outside of the door frame. No scaffold was used to place the joists. While walking upon the boards placed along the main wall, plaintiff stepped on the board extending over the door way. The board broke and plaintiff fell sustaining serious injuries. The joists which were being placed were heavy and required considerable exertion in placing them. Plaintiff testified that at the time of the accident he was intent upon his work and that when he stepped back on the board that broke he did not realize that it was unsafe. Reversing a judgment of nonsuit the court said:

"It was the duty of the defendant under the Labor Law to furnish such safe, suitable and proper scaffolds as were reasonably necessary for the safety of the employees engaged in constructing the building. We think upon the evidence the jury could have found that a scaffold was reasonably necessary for the plaintiff's use in the work in which he was engaged, particularly as to that part of it in which it was necessary to put together with mortises and tenons the heavy pieces of timber as stated and that it was unsafe for the plaintiff to perform the work that he was required to do from the top of the wall, at the particular place where the accident occurred.

The respondent asserts that eighteen inches of wall is as safe as eighteen inches of scaffold and that the plaintiff would have fallen if he had stepped from an eighteen-inch scaffold as surely as he did in stepping from an eighteen-inch wall. Admitting the correctness of this statement the assumption

is not in accord with the facts as they were shown on the trial. Even upon the defendant's contention all that the plaintiff had to stand upon at the place of the opening was the top of the seven-inch door frame. The board that was outside of and adjoining the door frame was not, according to the defendant's contention, intended for use to support in whole or in part the carpenters while they were engaged in placing the header and joists that were prepared to be fastened together. If a person had been placed on a scaffold that had but seven inches of safe floor, with additional flooring confessedly unsafe, to hold the weight of a person, and such person was required on such scaffold to do work similar to that which the plaintiff was required to do, the sufficiency of the scaffold and the negligence of the defendant in furnishing such a scaffold and the contributory negligence of the plaintiff in advertently stepping upon the unsafe part would be questions of fact for the jury. In determining whether the plaintiff was guilty of contributory negligence, it is necessary to consider that the work that he was required to do made it necessary for him to face the inside of the building. He was required to bend over in such a position that he could take hold of and sustain a heavy weight at a level below that of his feet. He was necessarily working in an awkward and trying position. It was while working in such position that the accident occurred. He testified that he did not know that it was not intended that the board should be stepped upon.

We think that it was for the jury to say whether the plaintiff under all the circumstances described was guilty of contributory negligence. The judgment should be reversed and a new trial granted, with costs to abide the event.

18. NON-DELEGABLE DUTY OF EMPLOYEE TO PROVIDE

Neither the temporary character of the scaffold nor the fact that it was erected by fellow-servants influenced the Court of Appeals in the following opinion from holding that a structure, some seven feet in height, made of wooden horses and boards, without rails or other fastenings, constituted a scaffold:

JEFFREY V. MILLER, 222 N. Y. 135 (Dec. 11, 1917).

POUND, J. This is an action for personal injuries received by the plaintiff by reason of the collapse and fall of a scaffold. The plaintiff was an experienced plasterer in the employ of the defendant. A loft, or office building, was being constructed and the defendant was doing the plastering. The plaintiff commenced work on this building on the morning of the day of the accident. He was accompanied by Kennedy, another plasterer, who worked with him during the day. In order to do their work the plasterers were obliged to employ scaffolds which were made out of horses and scaffold planks which was furnished for the purpose. These scaffolds were erected in the following general method: The saw horses were set in the desired position; about three long planks called "ledgers" were placed across them; then other planks described as "sheeting" were laid across the ledgers to constitute the flooring of the scaffolds. The scaffold planks were about 13 feet long by 9 inches wide by 14 inches thick, and the saw horses about 7 feet high, so that