
    Chauncey Nixon, an Infant, by Gerald Fitzgerald, His Guardian ad Litem, Respondent, v. Thompson-Starrett Company, Appellant.
    Second Department,
    March 5, 1909.
    Master, and servant — negligence—injury by defective scaffold — error not prejudicial to defendant — res ipsa loquitur.
    Planks laid across iron floor beams in a building under construction for the purpose of enabling laborers to carry material is a scaffold within the meaning of section 18 of the Labor Law.
    Where a plank extended so far beyond the supporting floor beams that it tipped up when stepped upon and precipitated the plaintiff to the cellar, it is proper to charge that the tipping of the plank was prima facie evidence that the scaffold was not safely laid.
    
      Appeal by the defendant, the Thompson-Starrett Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 27th day of April, 1908, upon the verdict of a jury for $3,500, and also from an order bearing date the 12th day of May, 1908, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      James J. Mahoney [M. J. Wright with him on the brief], for the appellant.
    
      Winfield L. Morse, for the respondent.
   Gaynor, J.:

The plaintiff, a boy of about seventeen, was working as a mason’s helper on the third floor of the building which the defendant was erecting as contractor. The iron floor beams, i. e., arch beams for the fireproof arches of masonry between floors were set, and across them were laid two or more plank ways, three or four planks wide, for the men to carry material along them by hand or in wheelbarrows. The plaintiff was carrying planks by hand, and as he stepped on the end of one of the planks of the way he was on it tipped up endwise and he was dropped into the cellar. The contention that the learned trial Judge erred in not ruling that these ways were not scaffolds (or scaffolding ”) within the meaning of section 18 of the Labor Law (Laws of 1897, chap. 415) is not correct. He left it to the jury to say; "and in this there was no error against the defendant, for it could have been ruled as matter of law that they were, as the jury found. Being scaffolds, the defendant was liable for negligence in the details of their construction under the said statute (Stewart v. Ferguson, 164 N. Y. 553). The charge that the fact of the plank tipping up was evidence, prima facie, that it was not safely laid, was not error. That was the sole and obvious cause, namely, that the end of the plank was so far between beams, that with sufficient weight it was a physical fact that it was bound to tip' up.

The judgment should be affirmed.

Present — Hirschberg, P. J., Woodward, Jenks, Gaynor and Burr, JJ.

Judgment and order unanimously affirmed, with costs.  