
    Heleman Pettersen, Respondent, v. Rahtjen’s American Composition Company, Appellant.
    Second Department,
    June 5, 1908.
    Master and servant — safe place to work—scaffold — inspection— charge — Labor Law.
    Since a master is not liable to his servant for defects of which he had no notice,, and which he could not have discovered in the exercise of ordinary cafe, it is error to refuse to charge “ That if the plank (of a scaffold) broke because of a ■ defect which was not discoverable upon inspection, there is no negligence shown oh the part of the master and the defendant would not be liable in this case,” where the court in its previous charge had not touched upon this point. ■ Under section 18 of the Labor Law a master is not an insurer of an employee while working on a scaffold. ■ ■
    A refusal to charge except as already charged is an instruction to the jury that the rule requested is hot wholly sound.
    Appeal by the defendant, the Rahtjen’s American Composition Company, from a judgment of the Supreme- Court in favor of the. plaintiff, entered in the office of the clerk. of the county of Kings ©n the 18th day of November, 1901, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 20th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      L. Sidney Carrrere, for the appellant.
    
      Maurice Sichel [Albert W. Vennio .with him on the brief], for the respondent,
   Jenks, J.:

v This action is by a servant against his master for negligence whereby a plank of a scaffold broke.. The judgment against the master should be reversed on an exception, to a ruling upon its request for an instruction.

A plaintiff’s witness testified that at the place of break there was a knot in the plank “twice the size of a silver dollar.” For the. defendant its foreman testified that upon examination of this plank he could not find a knot or other defect which could be the cause of the break, aud its boss rigger, who supervised the building of tlie sdaffold, testified that he looked over the planks used, which were of spruce 3 inches thick and 22 feet long, to see if they were all good, sound and solid, for the men to work on; that he could not see anything the matter with them, and that before' or after tlie break he could not see “ where the flaw was in it.” Thus both the existence of a knot or defect and, if either existed, the possibility of disco very thereof were iri issue. At the close of the main charge the defendant asked for the following, instruction: “ That if tlie planlc broke because of a. defect which was not discoverable upon inspection, there is no negligence shown on the part of the master, and the defendant would not be liable -in this case.” The court under exception denied the request except as “ already charged on that point.” The learned court had theretofore read to the jury the 1st paragraph of section 18 of the Labor Law and the first part of the last sentence of section 19 thereof, had instructed them in the language of Stewart v. Ferguson (164 N. Y. 553) as tothe duty • of the master, as to tile legal effect of the .fall of the scaffold in tlie absence of other evidence of a producing cause, and. had charged that the liability of the master rested upon its negligence. But the court had not touched the point referred to in the request.

Although the court had charged correctly as to the liability of the master in general terms, yet the fact that it had not referred at all-to the duty of inspection and thereafter had declined a specific charge upon that point, “ except as I have already charged,” makes the exception well taken, if the instruction asked was germane and sound. For .the refusal to .charge except as already charged is an. instruction to the jury that the rule requested is not wholly sound'. (Meeker v. Smith, 84 App, Div. 111; Cushing v. Metropolitan Street R. Co., 92 id. 512.) That the instruction was germane is ' shown by my summary, of the testimony, and that it was sound I shall now strive to show.

Section 18 of the Labor-Law “ enlarges.” the duty of the master “to responsibility for the safety of the scaffold itself” (Stewart v. Ferguson, supra), and thus in effeqt makes the scaffold a place of work, in departure from the '-decisions under the common law like Butler v. Townsend (126 N. Y. 105); Kimmer v. Weber (151 id. 417)) and Stewart v. Ferguson (supra). The 1st paragraph of section 18 is a statutory declaration, in prohibitive form, that, the . master shall be responsible for a scaffold as a place of work as he is responsible at common law for a place .of work. As to certain scaffoldings, the 2d paragraph of that section and other parts of the law prescribe certain safeguards and'limit the strain upon them. But the scaffold in the case at bar is not of the kind referred to, and did not bear a prohibited weight at the time of its fall. The statute does not make the master an insurer, and has full-vigor.'without such an interpretation. There is no reason why the master should be held an insurer as to one kind of place of work alone.

Any question of the plaintiff’s conduct as a bar to Ills recovery was eliminated by the court without 'objection. The question for the jury in this case was whether the master was negligent in erecting or in furnishing to the servant for his work an unsafe scaffold. Inspection is a non-delegable duty of the master. If' the word “inspection” must be limited to mere visual examination, then the. request was not well made, inasmuch as the question of the master’s. negligence involved a determination by the jury whether he had obsérved.due care tinder all of the circumstances, and but for the instruction if given the jury might have determined-that the master in discharge of that duty could and should have tested the planks and this plank in other ways than by scrutiny, and have found him negligent because he did not. But “ inspection ” is not limited necessarily to visual examination; it is ordinarily understood to embrace such tests and examinations as are proper to determine fitness, and to comprehend an inquiry into safety, efficiency and quality, not resting on visual inspection alone. (Words & Phrases Judicially Defined, 3657, citing Fidelity & Casualty Co. v. Seattle, 16 Wash. 445, and Texas & P. Ry. Co. v. Allen, 114 Fed. Rep. 178.) And in People v. Compagnie Gen. Transatlantique (107 U. S. 59) the court say : “ What is an inspection ? Some-tiling which can be accomplished by looking at or weighing or measuring the thing to be inspected,', or applying to it at once some crucial test. When testimony or evidence is to be taken and examined, it is not inspection in any sense whatever.” The term of the request discoverable upon inspection ” is comprehensive of any inspection which can discover. ,

Inasmuch, then, as the master is not liable to the- servant for defects of which he had no notice and which he could not discover in the exercise of ordinary care (1 S. & R. Neg. [5th ed,] § 195, and authorities cited; Lab. Mast. & Serv. § 156, and authorities cited; Carlson v. P. B. Co., 132 N. Y. 273), and there is no question of notice in the case, I think that the exception was well taken ■ and that the error is fatal to the judgment.

The judgment and order are-reversed and á new trial is granted.

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

Judgment and order reversed and new trial granted, costs to abide the event. 
      
       See Laws of 1897, chap. 415, § 18; Id. § 19, as amd. by Laws of 1899, chap. 192.—[Rep. -■ '
     