
    Albion B. Choyce, Respondent, v. Isaac A. Hopper & Son (Incorporated), Appellant.
    First Department,
    June 14, 1907.
    Negligence — injury by fall of brick from scaffold — failure of proof— erroneous charge as to scaffold.
    The plaintiff, in the employ of one contracting for the iron work of a building, was injured by the servant of a contractor erecting the brick work, who dumped a hod of bricks upon a scaffold in such a manner,-that a brick fell off and hit the plaintiff, who was engaged in selecting some iron beams beneath. Neither the plaintiff nor others1 habitually worked under the scaffold, though it appeared that he called out to the masons to stop work while he was there. There was no proof that the hodcarrier heard the call or.knew that the plaintiff was at work under the scaffold.
    
      Held, that the plaintiff was not entitled to recover, -where he failed to prove knowledge on the part of the contractor or such a situation as to show that he ought to have had knowledge that .some one was or was likely to be underneath the scaffold and liable to be.injured by falling brick;
    That it was error to charge that the jury could predicate negligence upon the failure of'the defendant to use planks of equal length in’constructing the scaffold, as there was no obligation to construct this scaffolding so that material could not fall off or through it unless men were customarily at work beneath or likely to pass under it. '
    Appeal by the defendant, Isaac A. Hopper & Son (Incorporated), 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 2d day of February, 1-907, upon the verdict. of a jury for $1,500, and also from an order entered in said clerk’s office on the 5tli .day ■of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. S. D. Amoreaux, for the appellant.
    
      Charles Caldwell, for the respondent.
   Houghton, J.:

The plaintiff was an employee of the contractors for the iron work, and the defendant was the contractor for the brick work of a building in course of erection, the two classes of work proceeding together.

The iron work had been erected to two stories in height and the defendant was filling in with brick. Some of the' iron columns and béams had been stored in the cellar and the plaintiff desiring a beam of a certain number went to the cellar to find it. The scaffolding upon which defendant’s masons were working was laid upon tiers ¡of wooden horses and was about fifteen feet from the cellar bottom. As the plaintiff went down he noticed how and where the masons were working, and as he got to the cellar he observed that chips of brick and scrapings from the wall were falling and called out to the masons to stop it until he got through looking under the scaffolding. A* the time this request was made a hodearrier in the employ of defendant was walking up the runway with'a hod of brick which he dumped on-one, end of the scaffold. The planks of the scaffolding were of unequal length and two bricks went over the. end of the shorter plank, and struck plaintiff on the head inflicting the injuries for which he complains, :•

It is manifest that if defendant is liable at all for the injuries wlfich the plaintiff suffered it is liable only because its hodearrier was negligent in dumping his hod of bricks in the manner in which he did. The warning which plaintiff gave was not addressed to him, and there is nd proof that he heard it or understood it or' knew that the plaintiff was at work under the scaffold. The bricks', were apparently rough ones and were dumped in the usual way. There .was no occasion for care in dumping them on the scaffolding in such manner as that none would fall off, unless some person was, or was likely to be, underneath. Neither the plaintiff nor any others about the building habitually worked underneath the scaffolding and it was, therefore, incumbent upon the. plaintiff to prove knowledge, on the part of the hodearrier or such a. situation as would show that he ought to have had knowledge that some .one was underneath and liable to be injured by falling brick. This- .we think the plaintiff failed to do. .

But even if the jury were justified in saying that the hodearrier heard and understood the warning of ought to have done so or knew that plaintiff was underneath, the scaffolding and. was negligent in . dumping his.hod, .still the judgment must be reversed for an error-in ,the charge. At the close of his charge, at the request of plaintiff’s counsel, the court charged that' the jury should take into consideratiorv whether or not the defendant used due care in the construction of the scaffold with respect to uneven- planks, to which the defendant excepted. There was no obligation on the part of the defendant to construct its scaffolding so that material would not fall off or through it unless men were customarily at work or.likely. to pass under it. There is no proof of such, a situation. Plaintiff’s presence there was casual and, in so far as appears, unusual. The scaffold was sufficient for the purpose for which it was erected, and there was no negligence on the part of the defendant in failing to guard against material falling from it, because there was no reason to apprehend that any one would be underneath who might be injrired thereby. The request as given introduced to the consideration of the jury an element of negligence which the facts proven did not warrant.

The judgment and order must be. re versed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred. ,

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