
    Louis Weiler, Resp’t, v. John A. Isley, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887.)
    
    1. Master and servant—Duty of employer to furnish scaffold.
    An employer is bound to furnish to his employees safe tools, machinery and appliances for their use. This includes a scaffolding built by the employer for his servants to work upon. If such scaffolding is not safe and substantial, by reason whereof an employee without fault suffers injuries, the employer is liable for the damage caused thereby, if the exercise of due care on the part of the employer would have prevented the injury. Follett, J., dissents, on the ground that defendant was not liable for the negligent act of his employee.
    Appeal from a judgment on a verdict in Onondaga county court for $450 for plaintiff, and an order denying motion made on the minutes for a new trial. Action for damages sustained by plaintiff in falling from a scaffold, caused by the alleged negligence of defendant. The injuries were received April 25, 1885.. Plaintiff had been at work for defendant about four weeks; he was told to go upon the scaffold to shingle a house; he had worked about two minutes when the scaffold gave way. Plaintiff was not a carpenter, but was employed as a helper to carry timber and shingles. He testified he did not know anything about scaffolds in this country. Defendant was a contractor residing in the fifth ward of Syracuse, and hired plaintiff, and he testified he did not construct the scaffold; he was present when it fell. He had a foreman by the name of Knobel. He testified he superintended the building of the scaffold, and explained how it was built. That he was superintendent, and that “Mr. Isley sent me to build it with the boy. I superintended the building of this scaffold. Young Isley and I built it. I told him what to do, and he did it. ”
    Defendant moved for a non-suit, and his motion was denied and an exception was taken.
    
      Hoyt, Beach & Hine, for app’lt; M. E. & O. W. Driscoll, for resp’t.
   Hardin, P. J.

Defendant was under obligations to plaintiff to furnish safe tools, machinery, appliances and structures for his use. To furnish a scaffold that was reasonably safe before directing the plaintiff to occupy it. Marsh v. Chickering, 101 N. Y., 400.

Plaintiff was bound to exercise due and reasonable care in its use.

The burden of showing that the injuries were not, by reason of want of care of plaintiff was upon him, and the jury were told to find he was free from contributory negligence before the plaintiff should recover. The verdict has passed, and we must assume that the jury found the plaintiff received the injuries in question without any fault on his part. Whether or not the scaffold was unsafe and unfit for the use which the defendant directed the plaintiff to make of it, was a question of fact for the jury. Binzing v. Steinway & Sons, 101 N. Y., 552.

Attention is called to Malone v. Hathaway (64 N. Y., 5), but we think it is not decisive of this case. There the negligence was that of a co-employee whose duty it was to inspect and repair, and an omission of that duty caused the death of the plaintiff’s intestate.

In Crispin v. Babbitt (81 .N Y., 516), it was the personal unauthorized and careless act of a co-employee which caused the injuries complained of, and that negligent act was held not to be the act of the defendant, but of a co-employee, and hence no liability upon the part of the defendant. In the case before us, upon evidence legitimately bearing upon the question, the jury have found that the defendant did not exercise proper care and prudence in regard to the scaffold before he directed the plaintiff to enter upon its use. Hence, defendant’s liability. ' Pantzer v. Tilly Foster Iron Co., 99 N. Y., 368; Probst y. Delamater, 100 N. Y., 266.

The jury upon the evidence before them may have found that the defendant omitted to use proper care and prudence, in regard to the scaffold, before he gave the direction to the plaintiff to go upon and use it.

If the defendant like a prudent, cautious builder, had himself gone over the scaffold, and made a suitable and careful inspection of it, he might have, and probably would have discovered the defect in its construction, seen the dangerous condition in which his foreman had left it, and made such additions and changes as would have rendered Jit safe and secure.

Plaintiff was young in experience, immature and under the direction of the defendant, who had better experience and judgment, entered upon the weak and insecure, as well as inadequate structure and received injuries. The verdict finds the plaintiff was not guilty of negligence, and that the defendant omitted to do his full duty in the premises, and we think the verdict should stand.

Judgment and order of the county court of Onondaga county affirmed, with costs.

Boardman, J., concurs; Follett, J., dissents.

Boardman, J.

I concur in Mr. Justice Follett’s opm_on which he is disposed to abandon. I do not see any reason why his reasoning is not right and his conclusions just.

The general principle which controls this case is this: An employer is bound to furnish to his employees safe tools,, machinery and appliances for their use; that includes a scaffolding built by the employer for his servants to work upon. If such scaffolding is not safe and substantial, by reason whereof an employee without fault suffers injuries, the employer is hable for the damages caused thereby, if the exercise of due care on the part of the employer would have prevented the injury.

This scaffold was built by the defendant for the use of the plaintiff and other servants. It matters not whether it was built by Knobel and defendant’s son or by the son alone, provided it was badly built, and the exercise of due care by defendant would have discovered and prevented the defects.

Such I understand to be the rule in case of railroad companies, and I know of no other reason why a different rule should apply in a case of individuals.

I think the judgment should be affirmed, with costs.

Hardin, P. J.

In Marsh v. Chickering (101 N. Y., 400) it is assumed to be the law that it is the duty of the master: “Is required to furnish such appliances or structures as are reasonably safe and suitable—such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances.”Whether the scaffold was unsafe and unfit for use was a question of fact, and the jury have settled that favorably to the plaintiff, and he is entitled to hold his verdict. Benzing v. Steinway & Sons, 101 N. Y., 552.

Brother Boardman’s views of the case seem to be right and should prevail.

Follett, J.(dissenting).

Appeal from a judgment of the county court entered on a verdict for $450 damages, and from an order denying a motion for a new trial, made on the minutes.

April 25, 1884, a shingling scaffold on which plaintiff and one, Eisner, were at work gave way and the plaintiff fell to the ground and was injured. This action was brought to recover the damages caused by the injury.

At this time, defendant, a builder was engaged in constructing houses, and employed at least four persons, Knobel, his foreman, John A. Isley, his son, Fred Eisner and this plaintiff.

During the forenoon of the day of the accident defendant • directed Knobel and defendant’s son to build this shingling scaffold. Knobel was an experienced carpenter, and defendant’s foreman. Defendant’s son was but sixteen years old, and without experience in such matters. The scaffold was built aoout teii o’clock in the foremoon, after which defendant’s son shingled from it for about half an hour. The scaffold was not again used until four o’clock of the same day, when the plaintiff went upon it to complete the shingling, by defendant’s direction, when it fell.

The plaintiff testifies that defendant’s son alone built the scaffold. Knobel and the son testify that they together built it. Whether it was built by both, or by the boy alone, was a question of fact. The fact that the scaffold fell within six hours after it was built, it having been previously used for half an hour, and while being used in the ordinary way for the purpose for which designed, is some evidence of defective construction.

This fact, and a description of the mode in which the scaffold was built, was before the jury, and they must have found that it was negligently constructed. Whether this finding is against the evidence, cannot be determined from the appeal book because it is impossible to tell how the scaffold was constructed. The witnesses testified from drawings of the building and scaffold, and in describing, they are reported as testifying, it was nailed “here,” it rested “here,” a piece of scantling on “this, illustrating,” ‘ ‘indicating, ” etc. While this was unintelligible to an appellate court, which cannot, from such a record, form acorrect idea of the objects described, or of their relations to other objects, if Knobel entrusted the construction of this scaffold to the inexperienced boy of sixteen, the jury was justified in finding him negligent, and on the other hand, if he and the boy united in building the scaffold, a finding that Knobel negligently constructed it is sustained by the evidence. The important question is whether the defendant is liable for the negligence of Knobel.

It is settled in this state that it is the master’s duty to exercise due care, to furnish safe appliances and structures for the use of his servants; and it is also settled in this state that when the master delegates the power to the servant, no matter how low in rank, to furnish or provide appliances or structures, as a co-servant, higher, or lower, in rank, is without contributory negligence, injured while using such appliances or structures, the master is liable for the injury. Mann v. D. and H. C. Co., 91 N. Y., 495, 500; Fuller v. Jewett, 80 N. Y., 46.

A master who exercises due care in the selection of his servants, is not liable for the negligent injury of one servant by another, unless the negligent servant was authorized to perform, and was performing master’s duties. Malone v. Hathaway, 64 N. Y., 5; Crispin v. Babbitt, 81 id., 516; Kelley v. Norcross, 121 Mass., 508; Colton v. Richards, 23, 123, id., 484; Feltham v. England, L. R, 2 Q. B., 33; N. Y. L. E. and W. R. R. Co. v. Bell, 8 East. Rep., 124; Wood’s Master and Servant (2d ed.), 447, 448, 449; Smith’s Master and Servant, 257. The authority of Malone v. Hathaway (supra), has never been questioned in this state, nor has it been distinguished or explained.. The case at bar seems to have been determined at the trial upon the authority of Green v. Banta (16 J. & S., 156; aff’d 97 N. Y., 627), whichis not well reported as will be seen by an examination of the record in the court of appeals. In that case, the foreman who directed that the scaffold should be built, stood by and superintended its construction, was authorized to and did employ the workmen, and had control of the construction of the building. The master did not see the scaffold before the accident. Appeal Book, pages 20 and 57. In Green v. Banto (supra), there was a complete delegation of authority upon the negligent servant to perform the master’s dúties; while in the case at bar there-was no delegation of the master’s duties upon Knobel, who was not authorized to control the work, or any particular branch of it, or the defendant’s workmen; but, on the contrary, the defendant was in personal control of the work, personally directed Knobel (an experienced carpenter), to build this scaffold, and personally directed the plaintiff to shingle from this scaffold. There is no case decided by the court of appeals which authorizes the holding, under such a state of facts, that the defendant is liable for the negligent act of Knobel. There are cases which, upon a cursory examination, may seem to hold a contrary doctrine, but they are cases against corporations, who must perform master’s duties by servants, and in which cases it appears, though not expressly stated, that the servants were performing master’s duties.

This case was not tried úpon the theory that the defendant was negligent in the selection of his servants or materials, that he negligently performed any act, or that, he performed or omitted to perform any act or duty.

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