
    Katie McHugh, as Administratrix, etc., of Nicholas McHugh, Deceased, Respondent, v. Grand Central Building and Construction Company, Appellant.
    First Department,
    June 18, 1909.
    Blaster and servant — negligence — Labor Law—.fall through shaft — unguarded openings — when statute does not apply.
    Section 20 of the Labor Law .does not require an opening or shaft in a building in process of construction to be fenced until the floor is laid, and its object is to prevent workmenusing the flooring from walking or falling into the opening.
    Plaintiff's intestate was working on a building which had been partially destroyed by fire and was in process of reconstruction. It was necessary to take up parts of the flooring to ascertain to what extent the timbers had been burned and needed replacing. An opening had been made through all the floors to the basement through which to let down damaged timbers and haul up new ones. Plaintiff’s intestate was told by a fellow-workman to go to the fourth floor to haul up a mason’s horse by a hand rope, and while doing so he fell through the opening and received injuries from which he died.
    
      Held, that section 20 of the Labor Law had no application to the situation proved, and that it was error to permit the jury to consider whether or not the statute had been violated as an element in determining defendant’s negligence;
    That the doctrine of a reasonably safe place in which to work- had no application, because the situation was constantly changing and necessarily being made unsafe by the progress of the work.
    Appeal by the defendant, the Grand Central Building and Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of November, 1908,. upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of November, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      John Vernou Bouvier, Jr., for the appellant.
    
      John F. McIntyre, for the respondent.
   Houghton, J.:

The plaintiff’s intestate was an employee of the defendant, which was engaged in the reconstruction of a building partially destroyed by fire. The roof of the building had been burned away and a portion of the floors and floor timbers. It was necessary to remove portions of the flooring from the various floors in order to ascertain to what extent the timbers had been burned, and to remove those that had been destroyed, and to put new ones in their place. Masons were employed in renovating the walls and fitting the new timbers, and when plaintiff’s intestate began work, two days prior to the accident, the defendant’s superintendent instructed him generally to help the masons, without giving him any specific directions'as to what particular thing he should do. One floor timber on each floor in direct line had been removed for the purpose of making an opening down which waste timbers could be lowered from the various floors, and up which necessary timbers and materials for repairs could be hauled. Loose planks were laid on the timbers where the flooring had been removed on the various floors, but with no effort to make a complete flooring. On the morning of the accident a fellow-laborer told the deceased that the masons wanted a horse Opon which to place a scaffold plank, and told him to go up to the fourth floor and haul it up through the opening by a hand rope. The deceased stood on the bare beams and began hauling up the horse, his colaborer guiding it, when he suddenly pitched head foremost down the opening, sustaining injuries from which he shortly died.

There was evidence that a derrick was installed on one of the upper floors, with block and tackle, and used for the purpose of lifting and lowering the heavy timbers, and the particular, negligence of the defendant relied upon by the plaintiff to sustain her judgment is that there was a violation of section 20 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192, and Laws of 1905, chap. 520) in failing to erect a barrier around the opening on each floor. The defendant urged on the trial, and now insists, that this section of the Labor Law has no application to the situation proven, and we concur in that view.

. The building was in process of reconstruction. It was necessary to take up the'flooring to ascertain to what extent the floor timbers had been charred.and needed replacing. • An opening was necessary .through which to let down the damaged timbers and haul up the new ones. Floors could not be relaid until the floor timbers had been repaired. ' The shafts or openings in each floor could not be inclosed until the floors were laid. Section 20 of. the Labor. Law contemplates the laying of floors before the fencing of openings or shafts, and it specifically prescribes at what stages-of the progress of the- building floors shall be laid. After carefully specifying, how many .of the upper stories of the building may be left open without floors, and to what extent floors must be laid as th.e building progresses (depending upon the material used), the section then provides that the shafts or openings left “ in each floor ” shall be fenced in by a barrier of prescribed height and form. The statute expressly permits the specified number of top stories to remain unfloored until another story is added, and it does not prescribe that the shaft or opening in the open, Unfinished, unfloored stories shall be guarded. This court, in the recent case of McNeill v. Bottsford-Dickinson Co. (128 App. Div. 544), held that the statute imposed no duty of fencing an opening or shaft until the floor is laid, and that the manifest purpose of the statute requiring the fencing of openings was not to protect men working at the shaft, hauling or uñloading materials before the' floor was laid, but to protect workmen and others using the floor from walking or falling into the'opening.

The statute in terms only refers to new buildings in process of construction in cities. But, assuming that it applies also to the repairing or reconstructing of old buildings, it had no application to the situation proven in the building in which the deceased was at Work, and the defendant was under no obligation as to him to fence the opening which it had made and which he was using in hoisting the material, for the floor had not been laid and could not have been at the then stage of the work. It was, therefore, error to permit the jury to consider whether or not the statute had been violated as an element in determining the defendant’s negligence. Besides, a barrier would not have helped the deceased, for, there being no floor. "he would have been obligéd to stand over the opening in order to haul up the horse with a rope, hand over hand, as he was doing. The doctrine of reasonably safe place in which to work had no application, because the situation was constantly changing and being necessarily made unsafe by the progress of the work.

The action is in form, under the Employers’ Liability Act, the notice under which is challenged. Assuming, however, the notice to be good, there is no proof of any negligence on the part, of the defendant’s superintendent in directing the deceased to work in a manifestly unsafe place. It -was not the superintendent, but a fellow-laborer, who suggested to the deceased to go to the fourth floor and to haul up the mason’s horse by hand.

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

Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment and order reversed and new trial ordered, costs to appellant to abide.event.  