
    Patrick Wynn, Appellant, v. Thomas G. Carlin, Respondent, Impleaded with Michael F. Wynn and Others, Composing the Firm of M. F. Wynn & Company, Defendants.
    Second Department,
    December 30, 1909.
    Master and servant — negligence—injury by fall from ladder — contributory negligence — notice of defect—failure of proof.
    In an action by the experienced foreman- of a sub-contractor engaged in roofing a building, brought against the general contractor, . to recover for injuries received by falling from a ladder, a nonsuit is proper where the plaintiff testified that he had used the ladder in question a number of times shortly before the accident without noticing any defect, but that when he commenced the ascent at the time he was injured he discovered that the ladder was loose and not fastened at the top to the beam against which it rested. There was a failure to show the defendant’s negligence or his own freedom from contributory negligence.
    Assuming that the general contractor supplied the. ladder and that the defect was such as to charge him with negligence upon notice, there was no proof of actual notice and sufficient time had not elapsed to charge him with constructive notice.
    Appeal by the plaintiff, Patrick Wynn, from á judgment of the Supreme Court in favor of the defendant Thomas G. Carlin? entered in the office of the clerk of the county of Kings on the 5th day of April, 1909, upon the dismissal of the complaint as to said defendant by direction of the court at the close of the .plaintiff’s case on a trial at the Kings County Trial Term,. the. action against the other defendants having been discontinued in open court.
    
      John J. O'Neill, for the appellant.
    
      Carl Sohurz Petrasoh, for the respondent.
   Hirschberg, P. J.:

The action is for negligence, and a nonsuit was granted at the close of the plaintiff’s case. I think it was properly granted. . The plaintiff received severe injuries while at work as a roofer in the construction of a building in the borough of Queens on the 30th day of March, 1904. He was employed by a firm which had the contract for the roofing and whose members were made defendants originally with the respondent, who was the general contractor for the building, the suit being discontinued as against the firm, at the trial.. The plaintiff was the foreman in charge of the roofing. The stairs were not built at the time of the accident, the roof being-reached by means of three ladders placed in a well hole at about the center of the building. The lowest'ladder reached to the top of the second story, and while the plaintiff was ascending it a few minutes after one o’clock of the day stated^ he was thrown from it by reason of the fact- that it was not fastened, and from the fall thereby occasioned received the injuries of which lie complains.

The plaintiff had been engaged in the business of roofing for thirty-five years, during which time it was his constant practice to go up and down ladders. He had-used the ladder in question a number of times before the accident'and had come down by means off it at noon time of the day in question. He testified-that on all those occasions the ladder was in a proper condition and safe. When he commenced the ascent at the time lie was injured he discovered the Condition of the: ladder at the outset. He testifies: “ When I was up on the second or third rung or so I felt the' top' of the ladder knock against the beam. The beam on the second floor above. Then I knew the ladder wasn’t'fastened. I was about twelve or fifteen feet up when I fell. In-other words, I had passed the'first floor. I was' about five feet beyond the floor, I was above it, I don’t know how far, * * * .I had just had my dinner, and the very last time I went down that ladder was just before dinner, twelve o’clock after the whistle blew, twelve o’clock. Twelve o’clock I went down. I- did not notice anything the matter with the ladder at that time, twelve o’clock. It seeined all right at that time. * * * I never heard any complaints about the ladder before I fell. And in fact, up to the time that I fell, up to this very last trip that I fnade on that ladder, I thought the ladder was perfectly safe.”

Ho proof was given as to who supplied the ladder. There was evidence that it was customary for the general contractor to do so. Assuming that the respondent supplied the ladder in this instance there was no evidence of neglect on his part, no evidence of actual knowledge that it was unfastened and in an unsafe condition. Time had not elapsed sufficiently to charge him with constructive notice, and obviously the plaintiff when he used the ladder knew the danger incident to such use.

The case of Dougherty v, Weeks & Son (126 App. Div. 786) seems controlling, even assuming the existence of a defect in the condition of the ladder for which the defendant upon notice could be held responsible in the circumstances. The court said (p. 790) : “ A ladder is a simple appliance. * * * There is no evidence of any prior accident; there is no evidence of any notice to the defendant of any defect. The condition complained of had existed but two days prior to the accident according to the evidence, when one of the witnesses caused one of the rungs to revolve by the exercise of force. The plaintiff himself had used the ladders a half a dozen times without discovering the alleged defect. It seems to us that when such a simple appliance properly constructed and of sound and' good material has been furnished, to hold the person furnishing it guilty of negligence for not discovering and remedying such a defect, it must appear that it had existed for such a period that he ought to have known of the defect, if he did not, and, therefore, was as responsible as if knowing the defect he had not remedied it.”

The plaintiff failed on both branches of his case, namely, in showing negligence on the part of the defendant' (respondent), and freedom from contributory negligence on his own part.

The judgment should be affirmed.

Present — Hirsohberg, P. J., Woodward, Jenks, Thomas and Miller, JJ.

Judgment unanimously affirmed, with costs.  