the scaffold with its ledgers and scaffold boards must have stood 7 feet and some inches above the floor of the room. To protect the workmen, guide planks were laid upon the flooring over and parallel with the tops of the horses to indicate that it was unsafe to go beyond such points. These scaffolds are customarily set up by the men who are to use them although on some jobs the erection, removal and re-erection are intrusted to laborers. They would be taken down and re-erected at intervals of about an hour. The various parts were not nailed or otherwise fastened together but were merely set in position. The plaintiff and Kennedy first erected such a scaffold in the rear of the room and gradually worked forward. Later in the morning two other plasterers came on the work, and also proceeded to erect a scaffold and to re-erect it as occasion required. Both scaffolds ran north and south with the width of the building; each was about 13 feet in width. The men who had come on later quit at 3 P. M., leaving their work uncompleted. The plaintiff and Kennedy, having finished with the scaffold they had erected, were directed by defendant's foreman, King, to go upon the scaffold upon which the men who had quit had been working, and finish up the work left undone by them.

Neither plaintiff nor Kennedy had had anything to do with the erection of the scaffold upon which they were thus ordered to go, nor had either of them ever been upon it until just preceding the accident.

The two scaffolds at the time King gave his order were some eighteen inches apart, and the plaintiff stepped from his own scaffold to about the middle of the other. The guard plank which should have been directly over the horse at the north end of the scaffold was some eighteen inches outside. The plaintiff stepped upon the scaffold beyond the horse but inside the guard plank. The boards tilted up and threw him to the floor, breaking his left arm.

On motion of the defendant made at the close of plaintiff's case the trial court nonsuited the plaintiff and dismissed his complaint. The plaintiff duly excepted and appealed to the Appellate Division where the judgment was affirmed by a divided court and he now appeals to this court.

Clearly the thing in question was a scaffold and the work being done was the erection of a building. (Storrier v. Mosier & Summers, 221 N. Y. 237.) The theory upon which the trial court proceeded was that scaffolds which are erected and taken down by the workmen themselves as the work progresses, are by reason of their temporary character not scaffolds furnished by the employer, under the provisions of section 18 of the Labor Law. (Cons. Laws, chap. 31.)

The question whether the defendant furnished the scaffold must be answered in the affirmative. The statute imposes upon the employer a non-delegable duty to furnish safe, suitable and proper scaffolds, constructed, placed and operated to give proper protection to the life and limb of those whom he employs to perform labor thereon. It takes away the defense based on the negligence of fellow-servants. (Caddy v. Interborough R. Tr. Co., 195 N. Y. 415.) The scaffold becomes a place to work instead of a mere detail of the work (Butler v. Townsend, 126 N. Y. 105; Bohnhoff v. Fischer, 210 N. Y. 172, 174), and it is of no consequence whether it is relatively permanent or temporary in its character.

Not all scaffolding is included, but only that furnished in the erection, repairing, altering, or painting of a house, building or structure." In Schapp

v. Bloomer (181 N. Y. 125, 128) this distinction is clearly made and is vital to the decision. A careful reading of the case indicates that the court speaks of the structure there in question as "a scaffold" but holds that it was the use of the scaffold, in affixing shafting to the ceiling of a factory, rather than in the erection of the building, which, like the use of such a scaffold to facilitate the work of hanging pictures or washing the walls of a room, took it out of the terms of the Labor Law. The doctrine of the case has no application here.

The judgment should be reversed and a new trial granted, with costs to abide the event.

C. LADDERS

1. WHEN NOT USED IN CONSTRUCTION WORK

A ladder permanently placed and used as the only means of access to the second floor of a factory is not embraced within section 18, because "not being used in the erection, alteration or repair of any building or structure," according to the following extract from a decision by the Appellate Division:

MIZAK V. CARBORUNDUM Co., 172 App. Div. 627 (April 19, 1916), in part. The present case presents a different question. Section 18 of the Labor Law is not applicable, because the ladder in this case was not being used in the erection, alteration or repair of any building or structure. The ladder upon which plaintiff here was injured was not an appliance furnished to plaintiff to use in any part of defendant's premises where he should need a ladder, but was furnished and located permanently as a means for all of defendant's servants to ascend to the platform and stairs leading to the second floor who have occasion to do so.

2. APPLIANCE PREVENTING SLIPPING REQUIRED

The Supreme Court sitting as Appellate Term in the First Department has unanimously reversed a dismissal of a complaint at common law in the Municipal Court of New York City for failure to provide a safe ladder, and granted a new trial under section 18 of the Labor Law. Blocking of a ladder at the bottom or notching at the top so as to prevent slipping seems to be required by the statute according to the following cases:

(1) BROEN V. TRANSIT DEVELOPMENT Co., 86 Misc. 32 (June, 1914). BIJUR, J. Plaintiff sues at common law. The plaintiff was injured under the following circumstances: He was engaged in painting the interior of a car belonging to defendant which was raised from the ground for facility of construction. There were one or two ladders placed near the doors of the car to afford access to the employees. The plaintiff, while working in the car, was directed to obtain a lamp. He stepped upon the top rung of one of these ladders which thereupon slipped away and precipitated him to the ground, and he sues for the resulting injuries.

It is not clear upon what theory the complaint was dismissed. The motion was made on the ground that plaintiff had failed to show negligence on the part of the defendant and his own freedom from contributory negligence.

Plaintiff claimed on the trial and on this appeal that the ladder should either have been blocked at the bottom or had some notch or other contrivance to hold it at the top to the body of the car.

Section 18 of the Labor Law imposes an absolute duty upon the employer to furnish a safe and suitable ladder. See Warren v. Post & McCord, 128 App. Div. 572; affd., 198 N. Y. 624; Stewart v. Ferguson, 164 id. 533; Caddy v. Interborough R. T. Co., 195 id. 415. In the case at bar the ladder used was not of this character.

In view of these considerations and the further fact that on the evidence plaintiff, to say the least, cannot be chargeable with contributory negligence as matter of law, the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

(2) SWEET V. GENERAL ELECTRIC Co., 165 App. Div. 935 (Nov., 1914), abstract.

The Appellate Division has held that a ladder was defective, within the meaning of section 18, when the spurs, with which it was equipped at the foot, had become so worn as not to accomplish the purpose designed.

D. MECHANICAL CONTRIVANCE ”—TEMPORARY BRIDGE AS The Appellate Division has held that a temporary bridge, consisting of planks laid loosely over an excavation, is a "mechanical contrivance" within the meaning of section 18, which forbids the furnishing of unsafe "scaffolding, hoists, stays, ladders or other mechanical contrivances." The court has held also that one who is under contract of employment and suffers fatal injury by the breaking of this bridge while on his way, at direction of defendant's foreman, to select the tools for beginning work, is protected by the statute. The facts are brought out in the opinion, reproduced, in part, below.

FULLER V. MELCAHY & GIBSON, 174 App. Div. 829 (Dec. 4, 1914), in part. Respondent, as sub-contractor for the George A. Fuller Company, was engaged in erecting the steel work of a building in course of construction in the city of New York. Plaintiff's intestate was a steel worker, and on April 16, 1912, he was engaged as a workman by one Dilley, who was foreman or superintendent for respondent. This [accident] occurred about nine or ten o'clock in the forenoon, and the arrangement was that plaintiff's intestate should actually go to work at the noon hour. Dilley, the superintendent, invited or directed the deceased to go into the building to select the tools with which he was to work. Along the front of the building over the sidewalk was a temporary bridge for the use of pedestrians. From the bridge to

the building was a runway or temporary bridge for the use of the workmen and commonly used by them. This consisted of two planks loosely laid, one end on the bridge over the sidewalk, and one end on a steel beam. Dilley, having directed the deceased to follow him into the building, started across the planks. He made the trip safely and deceased followed him, when according to the evidence which for the purposes of this appeal must be taken as true, one of the planks broke, precipitating deceased into an excavation as a result of which he died. It appeared that there was another means of ingress to the building which was less convenient. The means used by deceased was that usually employed by workmen and also that indicated by Dilley. The questions involved in the appeal, as we consider, are whether or not the runway or bridge was a mechanical contrivance within the meaning of section 18 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as and by Laws of 1911, chap. 693, commonly referred to as the "Scaffold Law," and whether or not the deceased was entitled to the protection of that statute. Upon the first question it is to be noted that the section is not confined in its operation to scaffolds. The obligation which the section referred to imposes upon the employer is to furnish a safe, suitable and proper 'scaffolding, hoists, stays, ladders or [and] other mechanical contrivances," an obligation which is absolute and cannot be delegated.

66

We think it clear that the planks furnished as a way or bridge were "mechanical contrivances" within the meaning of this statute, for it has been held that the provisions of the statute are not limited to scaffolds and their appurtenances, but extend to all mechanical contrivances used in the course of the work. (Muench v. Steel & Masonry Contracting Co., 155 App. Div. 409.) . . We are also of the opinion that the deceased was entitled to the protection of the statute. A contract of employment has been made between him and the respondent, and at the time he was injured he was engaged, under the direction of respondent's foreman, in making the necessary preparation for actually beginning the work. It has been held by this court that a master owes a duty to furnish a safe scaffold not only to his immediate employees, but also to other persons lawfully using the same who may be injured thereby. (Huston v. Dobson, 138 App. Div. 810.) Even more clearly does he owe a duty to one with whom he has made a contract of employment, and towards whom he has assumed an attitude of direction. A preparation for work by selecting the tools to work with is certainly a part of the service of employment.

A

Section 18 applies to a "house, building or structure." locomotive was held to be a "structure," and planks resting, without being nailed, on wooden horses on which a workman stood while repairing a locomotive in a repair shop, was held to constitute a "scaffold." In the Supreme Court action for damages for his death, occasioned by a fall from this scaffold, the case was dismissed by direction of the court. The Appellate Division unanimously reversed the lower court and granted a new trial in the following opinion:

1

1

1

LOESCH V. LONG ISLAND RAILROAD Co., 165 App. Div. 753 (Jan. 29, 1915.) STAPLETON, J. The cause of the death of plaintiff's intestate was a fall to a hardwood floor from a staging upon which he was at work. His administratrix sues to recover damages, alleging that death was caused by the actionable neglect of decedent's master. Her complaint was dismissed. We are of the opinion that she adduced evidence which required the submission of her case to the jury. (Kraus v. Birnbaum, 200 N. Y. 130.)

The defendant was overhauling a locomotive in its shop. The locomotive was stripped. The flue was being renewed. Nothing remained except the boiler and shell. Those parts were eight feet wide at the base and rose to a height of twelve feet. The boiler at the top was semi-circular. The base rested on blocks about five feet high. The front of the dismantled locomotive faced the west and the rear and firebox faced the east. Around the locomotive, on its north, south and east sides the defendant's employees engaged on the work erected four weeks before the casualty a staging consisting of planks laid upon horses five feet high. This staging was necessary to do the work. The intestate did not participate in its erection. We need not concern ourselves with the details of the construction save as they affect that part of the staging erected on the east end of the locomotive and in front of the firebox. In building that section five planks ten inches wide and two inches thick were laid across from a horse at the southeast corner of the locomotive to the planks forming the scaffold on the north side. There was no horse between these outer supports. It would have been better construction to place one in the middle, but for that purpose there was not another horse available. This imperfect description is an adoption of the testimony. There was a model in the trial court, and much of the evidence was given with reference to it. The horses used were shaky. The planks used on the east side were old and warped. They were not nailed or fastened in any way. From the outer plank a piece about two inches wide and a foot and a half long was broken. The plank was so warped that only the middle of it rested on the horse. It had a roll, so that it turned up when decedent stepped upon it. Decedent came to this job and went up to this section for the first time on the afternoon he was killed. He was engaged in reaming the boiler. He used an apparatus operated by compressed air. It was about twenty-eight inches long and weighed about fifty pounds. As he stood on the platform, the holes he was reaming were as high as his waist. As he was operating the machine a little before the casualty, the machine shook him. While he was shaking he tried to move his hands, made a little step backward, stepped on the end or outer plank, which tilted, and he fell off backward.

We think that this case cannot be distinguished by any sound distinction from Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415). The locomotive that was being repaired is a structure and the staging surrounding it is a scaffolding within the purview of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18, as amd. by Laws of 1911, chap. 693). Upon the evidence recited, the case should have been submitted to the jury to determine as to whether the scaffolding was unsafe, unsuitable or improper. (Caddy v. Interborough Rapid Transit Co., supra; Bohnhoff v. Fischer, 210 N. Y. 172; Corbett v. New York Central & H. R. R. R. Co., 151 App. Div. 159; Nixon v. Thompson-Starrett Co., 131 id. 152.)

The judgment must be reversed and a new trial granted, costs to abide the event.