
    Laura A. Porter, as Administratrix, etc., of James J. Porter, Deceased, Respondent, v. The City of New York, Appellant.
    Second Department,
    October 10, 1913.
    Blaster and servant—negligence — fall of workman engaged in moving swinging scaffold—defects in scaffold not proximate cause of accident.
    In an action to recover for the death of a painter who, while standing upon a “spar ” and engaged in shifting the position of a swinging scaffold, fell from the spar, there can be no recovery upon the ground that the scaffold itself was too narrow to work upon in safety and that while being moved it was without guard rails. This, because the alleged defects in the scaffold were not the proximate cause of the accident.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 5th day of December, 1912, and amended by an order entered in said clerk’s office on the 26th day of December, 1912. The judgment was entered upon the verdict of a jury for $10,000. An appeal is also taken from an order entered in the office of the clerk of the county of Queens on the 16th day of December, 1912, denying defendant’s motion for a new trial made upon the minutes.
    
      William E. C. Mayer [Terence Farley and Archibald R. Watson with him on the brief], for the appellant.
    
      Martin T. Manton [William H. Griffin with him on the brief], for the respondent.
   Thomas, J.:

The complaint is that defendant’s servant, a painter, was killed by its neglect in furnishing a scaffold “too narrow to work upon” in safety, and without guard rails. But the servant was killed, not in the occupancy of the scaffold, but in shifting it to another position. For such purpose the guard rail in front had been unshipped and the guard rope in the rear of the scaffold loosened. The guard rail had no protective relation to the decedent’s act, and its absence was not the proximate cause of the fall. It was his duty, with the aid of his coworker, to draw the ladder from position to position, and at the time an obstructing platform required the dismantling of the guard rail. But even if it complete had remained in place it could not have served him while traversing the spar, nor was it intended or expected to do so. From, the bridge two spars, tapering from eight to four inches in diameter, some thirty-six feet in length and from fifteen to eighteen feet apart, were suspended, and across these two spruce planks, one-half inch thick, two and one-half feet wide and twenty-five feet long, and separated by an interval of two and one-half feet, were lashed, on each of which two men while painting were supported. There is some suggestion that a painter’s ladder lay under the plank, which was the probable fact. It was the duty of the two men to move the scaffold as the work progressed. To do this each necessarily placed his feet or body on the spar, steadying or supporting himself by taking hold or resting upon some part of the bridge. Porter stated in the hospital that he stood on the spar for the purpose of pulling the plank along and, slipping, fell. So it is evident that the question of the guard rail did not and could not affect the matter, and that it should not have been considered by the jury. The only other charge of negligence is that the scaffold was too narrow for decedent to work on safely and, therefore, he fell from it. But he did not in any proper sense fall from the scaffold because it was too narrow, but from the spar, because he was obliged to rest on it to shift the plank. Hence, the real accusation against the defendant is that it furnished a scaffold that had to be moved along by means dangerous to the workmen. And the plaintiff contends that instead of one or two boards across the spars it should have been planked for the entire length of the spars. Then the workmen could have taken one board at a time and, walking across the other boards still lashed, placed it in the advanced position. But no such charge is made or intended in the complaint. It is true that there was evidence relevant to such issue in a sentence first given by the plaintiff’s witness and pursued on cross-examination by defendant. But when the plaintiff would have the testimony of the witness Gribbon directly on the subject, the defendant repeatedly objected upon grounds that required the rejection of the evidence if it were to be used for the issue now presented. It is not entirely clear whether the court intended to submit such issue to the jury, but as the particulars in the complaint were specifically mentioned, it is inferred that only such questions were submitted for decision. The decedent had moved the planks a hundred times, his working mate said, during the two years of his use of the scaffold, and if there was any question whether the defendant failed to observe the statute because it provided a scaffold movable in the way adopted, it should have been submitted after proper pleading and sustaining evidence, together with the question whether decedent’s knowledge, continued employment and conduct should of themselves defeat recovery. I do not consider whether such allegation would state a cause of action, inasmuch as it was foreign to the intendment of the complaint. Nor does the notice served suggest such failure by defendant. It is now sufficient to decide that neither of the failures charged in the complaint, even if it existed, was the proximate cause of the accident. The complaint charges that plaintiff served a notice pursuant to the statute; the defendant admits that it received a paper purporting to be a notice of intention to sue, and the notice in evidence shown to have been filed does prove notice of such intention. Hence, the required notice of intention to sue was proved.

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

Jerks, P. J., Carr and Stapleton, JJ., concurred; Rich, J., not voting.

Judgment and order reversed and new trial granted, costs to abide the event.  