
    Adah J. Bower, as Administratrix, etc., of George T. Bower, Deceased, Respondent, v. Holbrook, Cabot & Rollins Corporation, Appellant.
    Second Department,
    April 24, 1908.
    lüegligence — death by fall from, scaffold — evidence — Labor Law —. charge.
    A staging in a subway constructed by placing boards on joists which are fastened by hooks to the iron work to enable workmen to scrape and paint the iron work is a scaffold within the meaning of section 18 of the Labor Law.
    Where it appears that a painter working on such a scaffold, which had been erected by a gang of “riggers," stepped upon the unsupported end of a short plank resting upon the long planks which formed the scaffold, and that the short plank tipped up and precipitated him head foremost upon the track below, fracturing his skull and lacerating the brain, the jury is justified in finding that death resulted from the fall, although there is expert testimony, based on an examination of the brain, that death was caused by apoplexy.
    
      In the absence of proof that the short plank was placed on the scaffold by one of the workmen for his own convenience, the jury was justified in finding that it was a part of the scaffold a's originally constructed.
    The master’s duty is continuing. He must maintain, as well as furnish, a safe scaffold, and where it appears that the foreman knew of the position of the short plank, the jury may find that the master adopted it as a part of the scaffold.
    It is not error for the court to refuse to charge that it was the duty of the master to provide merely “ a reasonably safe and secure scaffold,” for the statute requires that it be “safe,” not “reasonably safe.”
    Appeal by the defendant, Holbrook, Cabot & Rollins Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1907, upon the verdict of a jury for $11,750, and also from an order entered in said clerk’s office on the 27th day of July, 1907, denying the defendant’s motion for a new trial made upon the minutes..
    
      Frank Verner Johnson, for the appellant.
    
      James M. Gray [Joseph E. Owens with him on the brief], for the respondent.
   Miller, J.:

The plaintiff’s intestate while in the employ of the defendant fell from a scaffold and within two hours thereafter died, as the plaintiff asserts, from injuries thus received. She relies on section 18 of the Labor Law (Laws of 1897, chap. 415) to establish liability.

The defendant had a contract to paint the ironwork in the New York city subway. Its men were divided into three gangs, riggers, scrapers and painters. The riggers constructed the scaffolding, the scrapers scraped the iron, and the painters followed and applied the paint. The plaintiff’s intestate was a painter. The scaffolding was supported by hooks fastened to the ironwork. Joists were fastened to the hooks, and planks eighteen feet long ten inches wide and three inches thick were laid upon the joists. On the day of the accident the riggers commenced the construction of the scaffolding, from which the intestate fell, at half-past seven. At eight o’clock one of the scrapers was observed at work sitting upon a short plank laid across two other planks, one end extending beyond the planking and wholly unsupported. At half-past twelve the deceased, with a fellow-workman, returned from his dinner, entered the subway which was dimly lighted, and went upon the scaffolding. A few minutes after he had begun work he was seen to step upon the unsupported end of the short plank, which tipped up and precipitated him headforemost upon the track below. He was picked up unconscious, and an examination disclosed that the skull was fractured and the brain lacerated. He died without regaining consciousness. The foreman of the gang of riggers, who had entire charge of the construction of the scaffolding, observed a man at work on the short plank at half-past ten and told him to remove it. It does not appear who put the short plank on the scaffold. Said foreman testified that he did not. He assumed that one of the scrapers had done so, but testified that he did not see it done. There were several workmen in the gang of riggers. Ail examination of the intestate’s brain disclosed that the blood vessels were weakened and that there had been a hemorrhage into the pons. There was medical testimony to the effect that that could not have resulted from a traumatic cause, and the theory of the defendant was that the deceased suffered an apoplectic stroke, and in falling from the scaffold carried the loose plank with him.

I think wé should not disturb the finding of the jury that the death resulted from the fall. Had there been no medical testimony in support of the plaintiff’s case the jury were at liberty to find, despite the medical evidence for the defendant, that the deceased was killed by the fall and not by a stroke of apoplexy occurring at the very moment when he stepped on the unsupported end of the plank and was thus precipitated to-the ground.

I think section 18 of the Labor Law applied to the work which the deceased was doing and to the scaffold upon which he was standing. ■ We have recently considered this question in Caddy v. Interborough R. T. Co. (125 App. Div. 681), and need not add to what was there said.

The appellant contends that the short plank was no part of the scaffold. It may be conceded that if one of the workmen for his own convenience had placed the short plank on the scaffold, and the master had not had either actual or constructive notice of it, it would not be liable. To all appearances when the deceased went upon it it was a part of the scaffold, and he had a right to assume that it was safe; the proof that it fell called for an explanation from the master; and in the absence of proof that it was a mere appliance put there by one of the workmen for his own convenience, I think the jury had the right to find that it was a part of the scaffold as originally constructed. The mere fact that a workman was seen sitting on it a half hour after the scaffold was constructed did not prove that he put it there. For aught that appears, it was within the power of the defendant to "call every one of the riggers who had assisted in the construction of the scaffold, and the fact that it did not do so was a circumstance which the jury had the right to consider. Moreover, even though it had been put there by one of the scrapers, I think the jury could find that the master had adopted it as a part of the scaffold. The man who had charge of the construction of the scaffold knew it was there, and indeed is one of the witnesses who testified to seeing the plaintiff step upon the unsupported end and fall. The master owed a duty both to furnish and maintain. The obligation was a continuing duty. (Berthelson v. Grabler, 111 App. Div. 142 ; Walters v. Fuller Company, id. 388.) The master intrusted that duty to its foreman, and I think the jury could find that the short plank was a part of the scaffold, either from original construction or because it had become so by the adoption of the master. (Croce v. Buckley, 115 App. Div. 354.) It was not error for the court to charge that the duty was a continuing one, or to refuse to charge “ that it is the duty of the defendant merely to use reasonable care to provide a reasonably safe and secure scaffolding for the men while they are doing their work.” The statute imposes the duty to provide a safe, not a reasonably safe scaffold. It may be that reasonable care in the performance of that duty, either by the master or by the one selected by him to perform it, is all that is required; but that question is not presented by the refusal to charge as requested. The question of contributory negligence was for the jury, and no rulings on the admission of evidence called to our attention require consideration.

The judgment and order should be affirmed.

Present — Woodward, Jenks, Hooker, Gaynor and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  