
    Bernard Cunningham, Respondent, v. John Peirce, Appellant.
    Second Department,
    March 22, 1906.
    Negligence—injury to workman by tipping of wheelbarrow on' scaffold — assumed risk of workman using common tools — failure to show negligence of master — Labor Law — when scaffold safely constructed.
    The defendant was. shoveling cement from a wheelbarrow, upon a scaffold composed of three planks laid upon horses. In the act of throwing a shovelful of cement, by reason of his placing his weight upon the outer plank, it sagged, and the wheelbarrow, one leg of which rested on said plank, tipped over and threw the plaintiff from the scaffold to the floor below;' the scaffold consisted of three planks, three inches thick and twelve inches wide, and was supported by “horses” at intervals of from ten to twelve feet. In an action to recover damages for the injury received,
    
      Held, that the scaffold was sufficiently safe within the requirements of the Labor Law, which does "not require a fanciful degree of safety in a scaffold erected for temporary purposes;
    
      That in the absence of' any proof that any other style of wheelbarrow would have been safer or would have prevented the accident, 'no negligence of the master could be predicated on the fact that the wheelbarrow Was loaded so as to be a little top-heavy; ' '
    That the defects of the wheelbarrow, if any, were as obvious to the plaintiff as to the defendant, and the accident Was not one that the defendanjr was bound to anticipate, as it would not have happened' if the plaintiff had placed the weight of the wheelbarrow upon the other planks.
    Hirschberg, P. J., and Rich, J., dissented.
    Appeal by the-defendant, John Peirce, 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 12th day of January, 1905, upon the verdict of a jury for $408.80, and also from an order entered in said clerk’s office on the 16th day of January, 1905, denying the defendant’s motion for á new trial made upon the minutes, and granting to the plaintiff an extra allowance.
    
      Richard B. Aldcroftt, Jr., and James B. Henney [Frank Verner Johnson with him on the brief], for the appellant.
    
      Charles F. Brandt, for the respondent.
   Woodward, J.:

The plaintiff was employed as á common 'laborer, engaged in taking loaded wheelbarrows from an elevator, rolling them along an elevated' platform or scaffolding upon the seventh floor of a> building in course of construction, and then unloading the same with a shovel, throwing the load* consisting of cement on the occasion of this accident, upon a platform some six or seven feet above that on "which the 'wheelbarrow was standing. The accident, according to 'the plaintiff’s testimony, which has been accepted by the jury, occurred while the plaintiff was shoveling the cement out of Ms wheelbarrow;. .It appears from the evidence that the platr form Was- made of spruce scaffolding planks about twenty-dhree feet long, twelve inches wide and three inches thick,, supported at intervals of ten or twelve feet -by “ horses.” There were three of these planks placed side by side, and the evidence is undisputed that this scaffolding was a suitable scaffolding, strong enough, and built so that it did not fall. ' The' only defect alleged in reference to this scaffolding -is that when the plaintiff set his wheelbarrow down and threw his weight' upon one of the outside planks it sagged about an inch, and the wheelbarrow leg or support being upon this plank it tipped over. ■ The plaintiff was between the handles of the wheelbarrow, and was 'in the act of throwing a shovelful of the cement on the platform above, and the turning of the wheelbarrow threw him off from the scaffolding, precipitating him through a hole in the floor to the floor below, where he sustained injuries for which the jury has awarded him a verdict of $408.80. The defendant appeals from the judgment entered upon such verdict.

It seems entirely clear tliat the Labor Law (Laws of 1897, chap. 415, § 18) never contemplated a fanciful degree of safety in a scaffolding erected for temporary purposes, and that the requirements of the statute are fully met when the master has created a scaffolding which is sufficiently strong in its materials and construction to remain in position while it is in use for the purpose for which it is designed. The plaintiff seems to practically concede that this js the fair construction of the law, for little is predicated upon this feature of the case, stress being laid upon the alleged defects in the wheelbarrow, which per-, mitted it to overturn, to the plaintiff’s injury. The wheelbarrow described in the evidence is what’ is commonly known as a “ Paddy’s gig,” and consists of two handles, spreading twenty-two inches to two feet and then running down to eight or ten inches to the point where the wheel is inserted, the same being surmounted by a sort of scoop-shaped body. There was considerable testimony in reference to alleged defects in this wheelbarrow, but the witnesses do not agree as to the defects, nor do any of th,em, so far as we are able to discover, show that the accident was due to any one of the alleged defects. The evidence does not attempt to show that any other style of wheelbarrow would have been safer, or would not have overturned under the same circumstances, though the plaintiff does suggest in his evidence that he had been used to a different style of wheelbarrow, but what this style was, or in what respect it would have prevented the accident if the defendant had supplied the style which the plaintiff had previously used, does not appear. There is a suggestion that the scoop or body of this particular wheelbarrow was too high; that it was, when loaded, top-heavy, but. in this respect' it does not appear to have differed from the general run of this simpie instrument,- and the top-heaviness, if it existed, was due, ho douht, to the method of loading rather than to any inherent defect in the construction of the wheelbarrow which it was the duty- of the master to .take notice of in fulfilling his duty of supplying reasonably safe tools and appliances for the work to be done.

After giving full weight to the discussion of counsel," in an effort to distinguish the facts in this case from the principle) enunciated in Marsh v. Chickering (101 N. Y. 396), we are unable to discover any proper line of demarcation. In the case cited, which has been followed in many instances, and has the weight of authority, it was said that where persons are epaployed in the performance of ordinary labor, in which no machinery is used, and no materials fur-, nished, the use of "which requires the exercise of great skill and care, it can. scarcely he claimed that a defective instrument or tool furnished, by the master, of which the employe has full knowledge and comprehension, can be regarded as making Out a case of liability within the rule laid dqwn. 'A common laborer who uses agricultm ral implements, while at work upon a farm or in a garden, or one who is. employed in any service not requiring great skill and judgment and who uses the ordinary tools employed in such work, to which he is accustomed and in regard to which he has perfect knowledge, can hardly be said to have a claim against his employer for negligence, if in Using a utensil, which he knows to be defective, he is, accidentally injured.” .If the plaintiff had been engaged in Working on a farm- and had used a wheelbarrow to carry a fertilizer upon a-scaffolding .that he might throw it over a wall and this same accident had happened to him, would the master be liable ? Hardly. Why then should the master be liable here ? All of the defects in the wheelbarrow, if they existed, 'were equally obvious the plaintiff as to the defendant, and, beyond this, the accident was not one which the defendant was bound to anticipate would result from any- defect which-is alleged against this particular wheelbarrow. . The truth is that the' wheelbarrows of the class in use are designed for easy dumping; they are intended for a crude form of W'ork, and their efficiency would be Very largely reduced if the legs or rests under the body Were as wide as the wheelbarrow: Indeed they would be too cumbrous to be used. This, .accident happened, no doubt, because the load upon the wheelbarrow was so placed that when the plaintiff set it down upon the planks the greater part of the weight was upon the outside plank. When the plaintiff, in the act of throwing the shovelful of cement to the platform above threw his whole weight upon the outside plank, there was a slight spring downward, and the wheelbarrow dropped over in that direction. If the wheelbarrow had been placed a little differently, so that the excess of weight had been on the second or third plank, the accident would not have happened, and it was not the duty of .the master to anticipate the accident which has happened, for that was one of the details of the work, and the danger was one which was always as obvious to the plaintiff as it could have been to the master.

The judgment and order appealed from should be reversed and a new trial granted, cost's to abide the event.

Jenks and Miller, JJ., concurred; Hirschberg, P. J., and Rich, J., voted for a modification of the judgment by striking out the provision for an extra allowance, for want of power in the trial court to grant the same, and, as modified, for the affirmance of, the judgment and order, without costs.

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