
    Arne Rolfsen, Appellant, v. Torsten Mathisen, Respondent.
    Second Department,
    February 28, 1913.
    Master and servant — negligence — injury to workman by fall of - scaffold — evidence — erroneous nonsuit.
    Where in an action for personal injuries it appears that while the plaintiff and a fellow-workman were standing upon a scaffold, furnished by defendant and intended for the use of both of them, engaged in putting siding boards upon the wall of a building, one of the boards, weighing twenty-five or thirty pounds, slipped from the hands of the fellow-workman and struck the scaffold, which broke, and plaintiff was thrown to the ground and injured, the question as to the sufficiency of the material furnished by the defendant for the construction of the scaffold should have been submitted to the jury, and a nonsuit was error.
    Jenks, P. J., dissented.
    Appeal by the plaintiff, Arne Bolfsen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of March, 1912, upon the dismissal of the complaint by direction of the court on a trial at the Kings County Trial Term, after a partial examination of the plaintiff and one of his witnesses.
    
      
      Herman N. Hansen, for the appellant.
    
      Edgar J. Treacy [Samuel Oreason, Jr., with him on the brief], for the respondent.
   Per Curiam :

The law forbids a master, employing or directing another to perform labor of any kind in the erection of a house, building or structure, to furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding which is unsafe, unsuitable or improper, or which is not so constructed, placed and operated as to give proper protection to the life and limb of the person so employed or engaged. (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18.) It further requires that all stationary scaffolding shall be so constructed as to bear four times the maximum weight required to be placed thereon when in use. (Id. § 19.)

Plaintiff and another were standing upon a scaffold furnished by defendant and intended for the use of both of them, and were engaged in putting siding boards upon the wall of a building. While thus engaged one of the boards, weighing twenty-five or thirty pounds, slipped from the hands of the fellow-workman and struck the scaffold, which thereupon broke, and plaintiff was thrown to the ground and injured. We think that there was evidence sufficient to go to the jury that the only material furnished by defendant for the construction of such scaffold was unfit for the purpose both because it was not of a kind usually employed therefor and because it was not sufficiently heavy to bear the strain that might be reasonably placed thereon. If there was any deficiency of evidence upon that point, it is sufficient to say that the trial court excluded testimony which might have established this. The case of Lorenzo v. Faillace (132 App. Div. 103), relied upon by respondent, is clearly distinguishable from the case at bar. In that case it appeared without contradiction that there was no defect in the material from which the scaffold was constructed and that the immediate cause of the break was the dropping of a heavy stone thereon by plaintiff’s fellow-servants contrary to defendant’s instructions. In this case the board that fell was not of great weight, and the fact that in the progress of the work such a board might accidentally fall should have been within the reasonable contemplation of the master and the scaffold made sufficiently strong to guard against the consequences of this contingency. At least it was a question for the jury whether such was not the case.

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

Hirschberg, Burr, Woodward and Rich, JJ., concurred; Jenks, P. J., dissented.

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