
    Carmela Rinando, as Administratrix, etc., of Joseph Rinando, Deceased, Appellant, v. D. C. Weeks & Son and Others, Respondents.
    First Department,
    April 14, 1916.
    Labor Law, section SO —violation of statute by employer—no assumption of risk by employee as matter of law — action for death of employee — contributory negligence of deceased, as a defense, must be pleaded — question for jury under section SOS of Labor Law, as amended—under section 841b of Code of Civil Procedure burden of proof as to such defense is on defendant — failure to guard opening as required by statute — question for jury—immaterial variance in evidence — duty under section SO of Labor Law devolves on employer using hoist constructed by general contractor.
    By virtue of section 303 of the Labor Law, as amended by chapter 353 of the Laws of 1910, an employee does not, as matter of law, assume the risk of injury from a Violation of statutory law by his employer.
    In an action against a master for negligently causing the death of an employee, contributory negligence of the deceased, if relied on as a defense, must be pleaded, and under section 303 of the Labor Law is a question for the jury, the burden of proof being upon the defendant as provided by section 841b of the Code of Civil Procedure.
    Section 30 of the Labor Law provides that where an elevator or elevating machinery or hod-hoisting apparatus is used in a building in course of construction for the purpose of elevating materials, “the contractors or owners shall cause the shafts or openings in each floor to be inclosed or fenced in on all sides by a barrier at least eight feet in height, except on two sides which may be used for taking off and putting on materials, and those sides shall be guarded by an adjustable barrier not less than three nor more than four feet from the floor and not less than two feet from the edge of such shaft or opening.” An employee of a subcontractor for the concrete work on a building in course of erection, while passing the side of an elevator shaft on the fourth floor in the performance of his duties in removing frames which supported the concrete around the columns, dropped his hammer and it fell down the shaft. While leaning over a barrier at the side of the shaft and looking down, he was struck by a descending elevator and died from resulting injuries.
    In an action brought by his administratrix for damages predicated on negligence in failing to guard the opening on the floor as required by section 30 of the Labor Law, the complaint alleged, generally, a violation of the statute, but the bill of particulars stated that defendants failed to inclose the shaft on the fourth floor by a barrier eight feet high, excepting on two sides used for taking off and putting cn materials to be used in the construction, and failed to guard those two sides with an adjustable barrier not less than three nor more than four feet from the floor, and not less than two feet from the edge of the shaft.
    
      The testimony of a witness for plaintiff tended to show that barriers in full compliance with the statute were erected, and that on the side on which decedent met with the accident there was an adjustable barrier about three and one-half feet above the floor and more than the distance required by the statute from the shaft; the testimony of two other witnesses for plaintiff, however, tended to show that this barrier was within two feet of the elevator shaft. Held, that whether or not the statute had been complied with was a question for the jury;
    That it could not be said as a matter of law that the failure to place the barrier two or more feet from the shaft was not a contributory cause of the accident.
    It was alleged in the complaint, and stated in the bill of particulars, that decedent tripped, slipped or became otherwise overbalanced, and through the fault and negligence of the defendant his head was caused to protrude into the elevator shaft.
    
      Held, that as the evidence did not show that he tripped, slipped or otherwise lost his balance, but merely indicated that he was leaning over the barrier, the variance was immaterial.
    One of the defendants which erected and operated a hoist under a contract with the general contractor owed no statutory duty to decedent to guard the elevator shaft, and a judgment for the dismissal of the complaint, made at the close of the plaintiff’s ease, will be affirmed as to said defendant.
    The duty of guarding a shaft, imposed by the statute on the general contractor who constructed it, devolves upon an employer when using the hoist for the purpose of elevating material in the performance of his subcontract work.
    Appeal by the plaintiff, Carmela Binando, as administratrix, from three judgments of the Supreme Court in favor of the respective defendants, entered in the office of the clerk of the county of New York on the 12th day of November, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from the order entered in said clerk’s office on the 4th day of December, 1914, pursuant to which the judgments were entered.
    
      M. L. Malevinshy [.Raymond C. Thompson with him on the brief], for the appellant.
    
      James B. Henney, for the respondent Arthur Greenfield, Inc. E. Clyde Sherwood, for the respondent D. C. Weeks & Son.
    
      Tallmadge W. Foster, for the respondent Pelham Operating Company.
   Laitghlin, J.:

On the 3d day of June, 1912, the decedent while in the employ of the defendant, the Arthur Greenfield, Inc., which was a subcontractor for the concrete work on a building which was being erected at No. 18 Walker street, borough of Manhattan, New York, by the defendant D. 0. Weeks & Son as the general contractor, and while leaning over a hoist elevator shaft, was struck by a descending elevator. He died from the injuries thus received, and this is a statutory action to recover damages therefor. The action is predicated on negligence in failing to guard the opening on the floor of the building as required by section 20 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1911, chap. 693), which provides that where an elevator or elevating machinery, or hod-hoisting apparatus is used in a building in course of construction for the purpose of elevating materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be inclosed or fenced in on all sides by a barrier at least eight feet in height, except on two sides which may be used for taking off and putting on materials, and those sides shall be guarded by an adjustable barrier not less than three nor more than four feet from the floor and not less than two feet from the edge of such shaft or opening.” The violation of the statute was charged generally in the complaint; but in the bill of particulars it was specifically charged that the defendants failed to inclose the shaft on the fourth floor by a barrier eight feet in height, excepting on two sides used for taking off and putting on materials to be used in the construction, and failed to guard those two sides with an adjustable barrier not less than three nor more than four feet from the floor, and not less than two feet from the edge of the shaft.

The decedent had been working on the building only a day and a half or two days. He had been using a hammer in removing frames which supported the concrete around the columns on the fourth floor; and while passing the side of the shaft, in the performance of his duties, he dropped his hammer and it fell down the shaft. He leaned forward over a barrier at the side of the shaft and was looking down; evidently to see where the hammer landed, when he was struck by the elevator.

The rule no longer obtains that it may be held as matter of law that an employee assumes the risk of hi jury from a violation of statutory law by his employer (Labor Law, § 202, as amd. by Laws of 1910, chap. 352; Fitzwater v. Warren, 206 N. Y. 357); and in such case contributory negligence is now a defense not only to be pleaded, but upon which the defendant has the burden of proof, and in this case that was a question of fact for the consideration of the jury. (Smith v. N. Y. C. & H. R. R. R. Co., 177 N. Y. 228; Fitzwater v. Warren, supra; Sackheim v. Pigueron, 215 N. Y. 62; McDermott v. Straus, 123 App. Div. 303; affd., 195 N. Y. 519; Code Civ. Proc. § 841b, as added by Laws of 1913, chap. 228; Maloney v. Cunard Steamship Co., 217 N. Y. 278; Gazzola v. O’Brien, 169 App. Div. 603.) The evidence with respect to the erection of barriers about the opening was quite conflicting. The testimony of one witness called by the plaintiff, who was in charge for the G-reenfield Company of the subcontract work and was in its employ at the time of the trial, tended to show that barriers in full compliance with the statute were erected, and that on the side on which the decedent met with the accident there was an adjustable barrier about three and one-half feet above the floor and more than the distance required by the statute from the shaft. The testimony of two other witnesses called by the plaintiff, however, tends to show that this barrier was within two feet of the shaft. One of them says that it was only about four inches from the shaft, and the other that it was only twelve or fifteen inches therefrom. There was, therefore, on this evidence a question of fact as to whether the statute had been complied with.

It is contended by counsel for the respondents that if there was a failure to erect barriers as required by the statute, that was not the proximate cause of the accident. We are of opinion that it cannot be said as matter of law that the failure to place the barrier two feet or more from the shaft was not a contributing cause to the accident. One of the witnesses indicated the manner in which the decedent leaned over the shaft, but the record does not disclose the extent to which his body-projected beyond the barrier. The work the decedent was required' to perform was about the floor, but not within the inclosure formed by the barriers if erected as required by the statute and it would not have required the removal of the barriers had they been so erected. These facts distinguish Egan v. Thompson-Starrett Co. (209 N. Y. 110); Sabatino v. Roebling Const. Co. (136 App. Div. 217), and Fairweather v. Sutphen (167 id. 349), upon which the respondents rely. The respondents also cite in support of their contention that the failure to erect the barriers was not the proximate cause of the accident Hurley v. Atlantic, Gulf & Pac. Co. (138 App. Div. 642); but the burden of proof on the question of contributory negligence has been changed since that decision was made, and there the employer’s failure to guard the machinery was known to the decedent, while here it does not appear that the decedent knew or was chargeable with knowledge that the barrier had not been placed the statutory distance from the shaft — and with that knowledge and with full knowledge of the danger incident to starting the machinery, the decedent in the Hurley case placed himself in a position of danger. The Fairweather case did not involve the violation of a duty imposed by statute.

It is further contended by counsel for the respondents that the judgment should be sustained on the ground of a variance between the complaint and the proof. It was alleged in the complaint, and stated in the bill of particulars, that the decedent “tripped, slipped or became otherwise overbalanced, and by reason of such tripping, slipping or overbalancing,” and through the fault and negligence of the defendants, their agents, servants, and employees, his head was caused to protrude into the elevator shaft. The evidence does not show that the decedent tripped, slipped or otherwise lost his balance; but merely indicates that he was leaning over the barrier. That we regard as an immaterial variance.

The Pelham Operating Company erected and operated the hoist under a contract with the general contractor. It was not a contractor for the erection of any part of the building, but merely a lessor of the .hoist. We think it owed no statutory duty to decedent to guard the shaft, and it has been so held by this court in the Second Department on like facts. (Anderson v. Pelham Hod Elevating Co., 129 App. Div. 639.)

It is perfectly clear that the statute imposed the duty of guarding the shaft on the general contractors who constructed it. It is not claimed in behalf of the employer of decedent that the duty did not devolve upon it as well, and considering that such legislation should be construed liberally to accomplish the end which the Legislature had in mind, we think it did devolve such duty upon an employer, at least, using the hoist for the purpose of elevating material in the performance of his subcontract work. (See Bohnhoff v. Fischer, 210 N. Y. 172.)

It follows, therefore, that the judgment should be affirmed, with costs to the Pelham Operating Company, but reversed and a new trial granted, with costs to appellant to abide the event, as to the other defendants.

Clarke, P. J., Scott, Page and Davis, JJ., concurred.

As to Pelham Operating Company, judgment affirmed, with costs. As to D. C. Weeks & Co. and Arthur Greenfield, Inc., judgment reversed and new trial ordered, with costs to appellant to abide event. 
      
       Since amd. toy Laws of 1913, chap. 492.— [Rep.
     