
    Michael Judson, Resp’t, v. The Village of Olean, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 22, 1889.)
    
    Negligence — Master and Servant — Nonsuit.
    Defendant employed one F. to erect a chimney, in which work it was necessary to usé a scaffold. Plaintiff, with other employees engaged hy F., built such scaffold, hut a co-employee insufficiently nailed one end, which gave way, and plaintiff was injured. There was no proof that defective materials were supplied, or incompetent co-servants employed. Seld, that a denial of motion to nonsuit on the ground that the accident was caused by negligence of a co-employee was error.
    Appeal from a judgment of the general term of the fifth judicial department, affirming a judgment entered on a verdict, and affirming an order denying a motion for a new trial made on the minutes.
    The defendant is a municipal corporation, incorporated by chapter 110, of the Laws of 1882, and authorized by chapter 129, of the Laws of 1883, to construct works for supplying it and its inhabitants with water. In 1883 defendant constructed works by which water is pumped from a river to an artificial reservoir on a hill, and thence distributed through the village by pipes. One of the structures built is a brick building containing pumps, which are operated by a steam engine.  Connected with this building there is a square brick chimney, which provides a drought for the fires, and an escape for their smoke. To facilitate the erection of the chimney, a staging was erected around it, by placing eight upright timbers, called staging poles, around and four feet from the chimney. On each side of the chimney an inch board twelve inches wide, called a ledger-board, was nailed horizontally to three staging poles. Small timbers, three by four inches in size, called putlogs, were liad transversely to the ledger-boards, one end of each resting on a ledger-board, and the other end in an opening left in the chimney. Across - these putlogs boards were laid forming a platform for supporting the materials used in the construction and the workmen while engaged in their work. As the work progressed, the platform was from time t'a time reconstructed at a higher elevation.
    About three o’clock in the afternoon of Saturday, October 6th, the platform was reconstructed in the manner described, at an elevation of about twenty feet above the ground From the time this chimney was begun, until the accident occurred, four bricklayers worked on it. S. S. Fish, who laid the north side or wall? Mr. Kinney, who laid the west side or wall, the plaintiff, who laid the south side or wall, and Frederick Fish, who laid the east side or wall. About eleven o’clock in the forenoon of Monday, October 8th, the south wall or side being further advanced than the north side, the plaintiff, upon the request of Frederick Fish, left the south side and went to the north side and began laying brick. While the plaintiff was there engaged in work, near the northwest corner of the chimney, the north ledger-board parted from the northwest corner staging pole, broke, and the plaintiff fell about twenty feet to the ground, sustaining severe injuries, on account of which he seeks to recover damages in this action.
    
      J. R. Jewell, for resp’t; Frederick W. Kruse, for app’lt.
    
      
       Reversing 41 Hun,, 637, mem.
      
    
   Potter, J.

The defendant employed S. S. Fish to work as & mason on and superintend the construction, of the chimney for daily wages. He was authorized to employ such laborers as he chose, and was to receive from the defendant their daily wages? and an advance of two shillings per day on masons and of one shilling per pay on common laborers. Fish hired and discharged the employees at will, and paid them such wages as he and they mutually agreed on, receiving afterwards from the defendant the amount paid out, and the advance above mentioned.

The plaintiff testified: “ Building of a scaffold is part of a brick mason’s trade.” (Folio 91) “It (the scaffold) was built on Saturday by Fish, me, and his son, Fred Fish, another mason and two tenders. The other mason was Kinney. I drove nails in center and one end of ledger-board that broke. There was another man nailing the other end, and I supposed he drove nails enough to hold it. Fish was holding the ledger-board that broke in the middle, while I was nailing one end and Kinney the other.- I don’t know whether the board broke or nails came out. I did not say that I could not see if it was nailed all right, because Fish stood in the way. He asked me if it was nailed all right, and I told him I thought so. It was the old man Fish who asked me that. It was before the scaffold broke. It was on Saturday before, after we had got all through nailing. The nails used were eights or tens; I think they were tens; scaffold was properly constructed, as far as I could see. It was constructed in same way-scaffolds are usually constructed for this kind of work. Braces were all right; I think that when Fish commenced nailing the ledger-board for the other scaffold, it jarred the staging poles and jarred the nails loose where it fell. There had been much more weight on it than at the time when it fell. Fish commenced nailing the ledger-board when the brick was laid up to the scaffold which fell, and he was in the act of nailing the board when the scaffold fell. I thought the jarring caused by this nailing caused it to fall. It was not unusual to nail another ledger-board while working on the scaffold.”

This evidence is not disputed, either directly or by inference; and it fully presents the plaintiff's theory of the cause of action, oi his duty and the duty of his co-employees. This is not a case where an accident has befallen an employee by reason of defective machinery, tools or appliances negligently furnished by the master for the use of his servant, or by the fall of a structure negligently constructed by servants engaged in another line or branch of employment ; but it was caused by the negligent omission of Kinney, a co-employee, to sufficiently nail the west end of the north ledger board to the northwest corner staging pole. The plaintiff was employed to construct, and engaged in constructing, with others, this scaffold and, with Kinney, nailed this ledger board in place. There is no evidence that the defendant or Fish negligently furnished unsuitable materials, or negligently employed unskillful or incompetent co-servants. The undisputed evidence is, that Kinney’s neglect to sufficiently nail the- west end of the ledger board was the cause of the accident, and the denial of the defendant’s motion for a nonsuit on the ground that the accident was caused by the negligence of a co-employee, was error.

The judgment should be reversed and a new trial granted, with costs to abide the event

All concur, Vann, J., in result, except Bradley, and Haight, JJ., not sitting.  