
    Sofie Loesch, as Administratrix, etc., of Charles Loesch, Deceased, Appellant, v. The Long Island Railroad Company, Respondent.
    Second Department,
    January 29, 1915.
    Master and servant — negligence — death, caused by fall from defective scaffold — evidence raising question for jury.
    Action against a master to recover for the death of an employee who, while working on a dismantled locomotive, fell from staging upon which he had been standing. The staging consisted of planks laid upon horses. The planks which caused the fall of the intestate were old and warped, so that they turned when decedent stepped upon them. He did not participate in the erection of the staging, and went upon it for the first time the afternoon when he was killed. On all the evidence, held, that a nonsuit was error, in that it was for the jury to say whether the scaffold was unsafe, unsuitable or improper within the purview of the Labor Law.
    Appeal by the plaintiff, Sofie Loesch, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of April, 1914, upon the verdict of a jury dismissing the complaint by direction of the court at the close of the case.
    
      Otto H. Droege, for the appellant.
    
      William C. Beecher [ Joseph F. Keany with him on the brief], for the respondent.
   Stapleton, J.:

The cause of the death of plaintiff’s intestate was a fall to a hardwood floor from a staging upon which he was at work. His administratrix sues to recover damages, alleging that death was caused by the actionable neglect of decedent’s master. Her complaint was dismissed. We are of the opinion that she adduced evidence which required the submission of her case to the jury. (Kraus v. Birnbaum, 200 N. Y. 130.)

The defendant was overhauling a locomotive in its shop. The locomotive was stripped. The flue was being renewed. ' Hothing remained except the boiler and shell. Those parts were eight feet wide at the base and rose to a height of twelve feet. The boiler at the top was semi-circular. The base rested on blocks about five feet high. The front of the dismantled locomotive faced the west and the rear and firebox faced the east. Around the locomotive, on its north, south and east sides the defendant’s employees engaged on the work erected four weeks before the casualty a staging consisting of planks laid upon horses five feet high. This staging was necessary to do the work. The intestate did not participate in its erection. We need not concern ourselves with the details of the construction save as they affect that part of the staging erected on the east end of the locomotive and in front of the firebox. In building that section five planks ten inches wide and two inches thick were laid across from a horse at the southeast comer of the locomotive to the planks forming the scaffold on the north side. There was no horse between these outer supports. It would have been better construction to place one in the middle, but for that purpose there was not another horse available. • This imperfect description is an adoption of the testimony. There was a model in the trial court, and much of the evidence was given with reference to it. The horses used were shaky. The planks used on the east side were old and warped. They were not nailed or fastened in any way. From the outer plank a piece about two inches wide and a foot and a half long was broken. The plank was so warped that only the middle of it rested on the horse. It had a roll, so that it turned up when decedent stepped upon it. Decedent came to this job and went upon this section for the first time on the afternoon he was killed. He was engaged in reaming the boiler. He used an apparatus operated by compressed air. It was about twenty-eight inches long and weighed about fifty pounds. As he stood on the platform, the holes he was reaming were as high as his waist. As he was operating the machine a little before the casualty, the machine shook him. While he was shaking he tried to move his hands, made a little step backward, stepped on the end or outer plank, which tilted, and he fell off backward.

We think that this case cannot be distinguished by any sound distinction from Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415). The locomotive that was being repaired is a structure and the staging surrounding it is a scaffolding within the purview of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18, as amd. by Laws of 1911, chap. 693). Upon the evidence recited, the case should have been submitted to the jury to determine as to whether the scaffolding was unsafe, unsuitable or improper. (Caddy v. Interborough Rapid Transit Co., supra; Bohnhoff v. Fischer, 210 N. Y. 172; Corbett v. New York Central & H. R. R. R. Co., 151 App. Div. 159; Nixon v. Thompson-Starrett Co., 131 id. 152.)

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

Jenks, P. J., Burr, Thomas and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  