
    Joseph Schmidt, Appellant, v. Fred Rohn, Respondent.
    Second Department,
    June 5, 1908.,
    Master and servant—safe place to work—placing scaffold—assumption of risk.
    It is the duty of a.master to provide reasonably safe and proper contrivances so placed and operated as to give protection to the servant.
    'Where for some unexplained reason a patent scaffold collapsed while plaintiff ■ was working thereon, assuming that it was insecure by reason of the way it was set on the ground, it is for the jury to say whether the master performed his duty to place the contrivance properly.
    A plaintiff who has objected to using a scaffold and only does so on the master’s assurance of its .capacity does not, as a matter of law, assume the risk.
    
      Appeal by the plaintiff, Joseph Schmidt, 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 10th day of May, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term.
    The action was brought under the Labor Law to recover damages for personal injuries.
    
      Robert Stewart [Ralph G. Barclay with him on the brief], for the appellant.
    
      Martin E. Halpin, for the respondent.
   Rich, J. :

The plaintiff at the time of the accident was employed by defendant as a painter. It appears from his testimony upon the trial that on the morning of the accident defendant set up a new patent ladder and directed that plaintiff work upon it. The ladder is described as being a scaffold or support, made of two straight ladders placed perpendicularly, and between them a horizontal ladder made in three parts, each about six feet long, fastened together and fastened to the perpendicular ladders with thumb screws.

This contrivance was new to plaintiff, and he objected to working upon it until informed by defendant that it would hold fifteen men and he should be afraid of nothing at all. Plaintiff worked upon the scaffold a short time when, for some reason entirely unexplained, the cause being unknown to him, it fell over, precipitating plaintiff to the street below, inflicting injuries of a more or less serious nature. It is argued by counsel for defendant that its fall was due to plaintiff’s negligence. It is claimed that he was standing near the end of the ladder and made a stretch to do some painting and upset the ladder,” but the testimony will not bear this interpretation. ■ He says he had made a stretch from the end and went to the middle of the scaffold when the thing fell, the only inference being that he had painted a strip across from the end, and he says: “ I was in the middle when the ladder went away.” The learned justice who presided at the trial, speaking of the cause, said: “ There is not any pretense that it fell to pieces, but it tipped over, The insecurity, if any, was in the way it was set upon the ground.” Assuming the conclusion of the learned trial justice to be correct, may not a jury have been warranted in finding that the tipping was' due to the failure of defendant to properly place' the ladder in position .? I think such-an inference might have' been drawn. It was the-duty of defendant to provide a reasonably safe and proper com ' ■trivanee so placed and operated as to give protection to plaintiff (Labor Law [Laws of 1897, chap. 415], § 18; id. § 19, as amd. by Laws of 1899, chap. 192), and it was for the jury to say whether the -defendant performed his duty in this respect. (Haggblad v. Brooklyn Heights R. R. Co., 117 App. Div. 838.) It cannot he said as matter of law that plaintiff assumed the risk (Guilmartin v. Solvay Process Co., 189 N. Y. 490, 495), and the ' question as to plaintiff’s contributory negligence was one of faction the jury. It follows, therefore, that the judgment must be reversed and a new trial granted, costs to abide the event.

Jenks, Hooker, Gaynor and Miller, JJ., concurred..

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