
    Frank DeMarco, Appellant, v. Richard F. Lucey, Respondent.
   Judgment and order reversed upon the law, and a new trial granted, with costs to abide the event, for error in the charge of the learned trial justice in instructing the jury that the plaintiff must satisfy them that the accident was not occasioned by his own negligence and that plaintiff’s negligence was a bar to his recovery. The attempt to correct this erroneous instruction, which was reiterated during the charge, was unsatisfactory; the defendant’s counsel consenting, the court told the jury to “ eliminate all the words of my charge with reference to contributory negligence.” We think this was not enough. The learned justice having correctly charged tlio jury that there was a statutory duty on the employer to furnish a cafo ladder leading to the scaffold, upon defendant’s exception to such charge,, changed his instruction and told them as matter of law that there was no proof of any necessity for a ladder. But at most it was for the jury to say whether in view of the height of the scaffold a ladder was required, or whether the absence of a ladder caused or contributed to the accident. There was evidence that there was no room for plaintiff to get up on the scaffold by using the “ horses ” at either end, his fellow-workmen being in the way. Kelly, P. J., Jaycox, Manning, Kelby and Kapper, JJ., concur.  