
    James H. Chadwick, Resp’t, v. William Brewsher, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    MASTEB AND SEBVANT—NEGLIGENCE.
    Plaintiff, while in the employ of defendant, was injured by the fall of a " painter’s scaffold” on which he was at work. It appeared that the roof from which it was suspended was a valley roof; that when first put up, plaintiff fastened the planks on which it hung, and was told by defendant that it was not necessary; that it was subsequently removed by defendant, who did not tie it. He Id, that, although plaintiff knew as much about how the planks were placed as the defendant did, he had a right to rely on the latter’s superior knowledge as to the latent dangers attending their arrangement, and, in view of the assurance given, was not guilty of contributory negligence in continuing to work on the scaffold.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict upon a trial at the Albany circuit
    The plaintiff was a journeyman house painter in the employ of the defendant, who was a master house painter. Plaintiff brought this action to recover damages because of injuries sustained by him in consequence of the fall of a scaffold upon which he stood while engaged in the defendant’s service. The defendant with his workmen, of whom plaintiff was one, on the 1st day of July, 1889, was painting the exterior walls of a brick building in the city of Albany, 65 feet front, 165 feet deep and 24 feet high, having a valley roof descending from the outer edges of the cornice at the top of the exterior walls toward the center. The plaintiff and another workman were supported by a “ painter’s scaffold,” suspended by two ropes, each attached to the end of a separate plank lying flat upon the roof, with the end projecting beyond the cornice eight inches. Bach plank was about sixteen feet long, two inches thick and fourteen inches wide. The plank was not fastened to the roof except by its weight, and its declining position down the slope of the valley roof. One of these planks came off the roof, causing the scaffold upon which •the plaintiff rested to fall, and plaintiff was injured. The scaffold was such as is commonly used by painters. When the roof is flat, or, if a valley roof, the decline towards the middle is slight, it is customary to fasten the planks either by putting weights upon their inner extremity, or by tying them. The plaintiff had been engaged upon this building six days; the defendant was also personally engaged in the work; he had worked from this scaffold. When the scaffold was first hung it was on the south side of the building; both plaintiff and defendant then hung it, and plaintiff tied the planks to a chimney or brick ventilator, the defendant remarking that it was not necessary ; the roof declined less upon this side of the building than upon the side where the scaffold fell; the defendant subsequently shifted the scaffold several times and did not tie the planks or otherwise fasten them. The plaintiff was upon the roof several times when the platform was shifted and he testified that all the while he was working upon it he1 knew it was not tied. The plaintiff had been a painter about fifty years; the defendant about thirty-eight years.
    
      Wm. P. Rudd, for app’lt; D. C. Herrick, for resp’t.
   Landon, J.

The evidence shows that the defendant, the master, adjusted the planks from which the scaffold was hung and did not fasten them to the roof, and that in consequence one of the planks came off the roof, causing one end of the scaffold to fall, with injury to the plaintiff as the result The verdict is to the effect that the plaintiff was injured in consequence of the negligence of his master. This verdict must stand unless the plaintiff is chargeable with contributory negligence. The plaintiff knew how his master had left the planks which supported the scaffold, and made no complaint or comment. But when the scaffold was adjusted several days before, the plaintiff, in the presence of the defendant, tied the planks. The defendant then said it was unnecessary to tie them; that they would hold without tying all that could be placed upon the scaffold. They were not thereafter tied. We think the verdict may be upheld upon the ground that though the plaintiff had full knowledge of the facts, he did not know, as fully as his master was chargeable with knowing, the danger indicated ; that he was put off his guard by his master’s assurance of safety, and that he relied and had the right to rely, in view of his lack of any knowledge of danger, upon what he supposed to be the better opinion of his master. The law assumes that the master knows, or ought to know, more than the servant about the risks peculiar to the place where he assigns him to labor and to the appliances used in performing it, and in any event owes him the duty to use reasonable care to guard him against danger from either. The fact may be shown in exculpation of the master, that the servant had the superior knowledge and. was therefore employed, or that he had ample knowledge of the risks, and without any urging on the part of the master volununtarily assumed them, knowing that the master, from motives of economy or in reliance upon the extra care and ample knowledge of the servant, declined to use any further safeguards or postponed their introduction. Marsh v. Chickering, 101 N. Y., 396, and Sweeney v. Berlin, etc., Co., 101 N. Y., 520, cited by the defendant, illustrate these rules.

In the first case the servant was employed to light lamps in front of his employer's building. He used a ladder to mount up to the lamps. He had asked his employer for a ladder hooked and spiked. He was told to get such a ladder. He got a new ladder, and his employer promised to have hooks and spikes put on it, but did not do it, and the servant used it as it was until it slipped on the snow and injured him. The court assert the rule of the better knowledge of the master, but hold that in the case stated the servant's knowledge was, with respect to the ladder and its safety, equal to that of the master, as it obviously was. Suppose that when the servant asked to have hooks and spikes placed upon the ladder, the master had answered, “ It does not need them; it is safe as it is." The case would have been different, and more nearly like the one before us.

Sweeney v. Berlin, etc., Co., 101 N.Y., 520, was a case in which the servant knew as much about the risks of the machine as his master did, but nevertheless assumed them without being urged and without being put off his guard. He was not allowed to recover. Suppose the master, when the servant pointed out the danger, had said there was none, and thus put the servant at ease respecting it The result would have been different.

Here we may assume that the plaintiff knew as much about how the planks were placed as his master did, but that he did not know as well as his master did the danger which was latent in such an adjustment of them. It is one thing to know the visible conditions, and may be quite another to know what they indicate. In the present case the master assumed to know, and by virtue of his assumed superiority of knowledge he dispelled his servant’s apprehensions.

McGovern v. Railroad, 123 N. Y., 280; 33 N. Y. State Rep., 416, is a recent application of ■ the rule. There the servant from his long employment must have known, if his intelligence was normal, fully as much about the danger as his master did. But the court held that he had the right to assume that his master in directing him to enter the bin, which proved to be a. death trap, knew more about it than he did. His master in that case did not, as in this, tell him it was safe, but the court held he had the right to infer that his master thought it safe because he gave the order. In the present case the jury had the right to find that if the master had not interposed his assumed superior knowledge the plaintiff would not have taken the risk.

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  