
    Marguerite Brady, as Administratrix, etc., of Martin Kriese, also Known, as Martin Brady, Deceased, Respondent, v. The Pennsylvania Steel Company, Appellant.
    First Department,
    October 22, 1909.
    Master and servant — negligence — death, by fall from, bridge — tie used in temporary railroad not scaffold.
    Neither the deck of a bridge upon which it is proposed to install an elevated railroad, nor a tie laid thereon to accommodate a traveling derrick, is a scaffold within the meaning of the Labor Law.
    Where an employee fell and was killed because in the course of his duty he stepped upon the projecting end of a loose tie which had been used as a portion of a temporary track to support a derrick, it is error to refuse to charge that the tie was not a scaffold within the meaning of the Labor Law. „
    Appeal by the defendant, The Pennsylvania Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of June, 1909, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 16th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      H. Snowden Marshall, for the appellant.
    
      Richard J. Donovan, for the respondent.
   Houghton, J.:

The defendant was engaged in the construction of what is known as the Blackwell’s Island bridge across the East river, and plaintiff’s intestate was in its employ as a signalman. The bridge had two decks, the lower one for trolley cars, teams and pedestrians and the upper one for elevated railway tracks. On this upper deck the deféndant had installed a traveling derrick. Ties about fourteen feet long were laid loose on the deck structure and rails spiked to them. As the building of the bridge progressed the rails behind the derrick were taken up and relaid ahead of it. For the purpose of accommodating a guy rope one of the ties liad been sawed in two in the middle. When the rail covering this tie was removed the two halves lay upon the structure. All the ties projected over the structure but a full tie was of sufficient weight so that a man could step on the end without tipping it. The rails were being swung from the rear of the derrick to the front by the derrick itself, and the plaintiffs intestate was engaged in the work of signaling the engineer of the derrick when to hoist and lower. In order to do this it was necessary for him to step on the end' of the ties so that the engineer should get a proper view of his signals. In doing this he stepped upon the half tie and it tipped with him and he fell to the deck below causing injuries from which he died. The complaint is framed under the Employers’ Liability Act (Laws of 1902, chap. 600).

In the course of his charge the learned trial court referred to the duty of a master to furnish suitable and proper scaffolding ” for the use of its emplbyees, and at the close of the charge the defendant’s counsel asked the court to instruct the jury that the ties or crossbars were not a scaffold within the contemplation of the Labor Law, which the court refused to do.

We think this was error for which the judgment must be reversed. The deck of the bridge upon which it was proposed to install an elevated railway was not a scaffold, nor were the ties which were laid upon it for the purpose of accommodating the traveling derrick a scaffold. The plaintiff’s intestate was engaged with others in tearing up the track and shifting the rails from one point to another on this deck. It was the place in which he must necessarily work; but the duty of his master towards him with respect to the safety of such a place was quite different from the duty imposed to provide a safe and proper scaffold under the mandate of section- 18 of the Labor Law (Laws of 1897, chap. 415). Under the charge of the court, and his refusal to" charge, it must be presumed that the jury measured the defendant’s liability on the theory that the place on which the decedent was at work was a scaffold. Indeed, at the close of the defendant’s requests, the court remarked that he did not charge anything at all with respect to a safe place in which to work.

Because of the infinite kinds of work necessary to be done and the numerous devices constructed upon which men may do it, there is necessarily a great diversity of opinion as to what does and what does not constitute a scaffold within the meaning of the Labor Law. Illustrating this, the Court of Appeals in the recent case of Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415) has collated many of the reported decisions upon the subject without, however, indorsing the conclusions reached in them. Many contrivances have been deemed scaffolds, but no authoritative decision'has gone to the extent of declaring that the platform of a bridge in process of construction constitutes a scaffold within the meaning of the Labor Law.

We purposely refrain from discussing whether or not the plaintiff has any cause of action against the defendant upon any other theory.

Our conclusion is that the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, Lawhlin and Clarke, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  