
    Annie McNeill, as Administratrix, etc., of John McNeill, Deceased, Respondent, v. Bottsford-Dickinson Company, Appellant.
    First Department,
    November 13, 1908.
    Master and servant — negligence — fall while laying floor timbers — safe place to work — failure to guard opening intended for elevator — Labor Law construed.
    Where a carpenter engaged in laying floor beams between girders fell from planking which he had laid thereon, the question of a- safe place to work is not involved for he himself was constructing the place.
    Where the floor on which he was working was the highest then under construction, it is error to charge that a block and fall used to hoist timber through an opening which later was to contain an elevator shaft, was an elevating machine within section 20 of the Labor Law, and that a failure of the defendant to inclose or fence such opening is evidence of negligence.
    Said statute is not designed to protect persons engaged in unloading material at the top of a shaft or opening from falling into it, but rather to protect others working or lawfully on a floor which has been laid up to the shaft or opening.
    Appeal by the defendant, the Bottsford-Dickinson Company, from a judgment of the Supreme Court in favor of the plaintiif, entered in the office of the clerk of the county of New York on the 19th day of February, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederick W. Catlin,, for the appellant.
    
      Frank F. Davis [Raymond D. Thurber with him on the brief], for the respondent.
   Laughlin, J.:

This is a- statutory action to recover for the death of John McNeill who was employed by defendant as a carpenter. Defendant was erecting a building at No. 100 Broad street in Greater New York. At the time in question the walls, which were brick, had been constructed to an elevation about one foot above the third floor and the girders, which were steel, had been set in place to the same height, but with the exception of these walls and girders the third floor had not been constructed, and as is evident from these facts, was entirely open between the girders and between girders and walls, and no stairway had yet been erected. The day of the accident the decedent and one Bower, another carpenter, were engaged in putting floor beams in place between the girders. The girders were sixteen feet long and ran north and south. They rested on the brick work. The floor beams were wooden timbers eighteen feet long, one foot wide and three inches thick. They were only ten inches apart and ran at right angles to the girders and rested on the flanges thereof. The evidence indicates that the beams were passed up from the floor below through the openings between the girders by laborers and hauled up by decedent and his fellow-workman by ropes attached to either end of .'the beam. When the beams had been put in place on each end of the opening between the girders where they were working at this time so that only an opening of about six feet was left, the decedent and Bower were directed by their foreman to obtain and place two planks across the beams to work upon. Two planks, twelve feet long and two inches thick and ten inches wide, were passed up and were placed across the beams side by side, forming a platform the width and length of the planks and leaving a rectangular opening bordered by them and the nearest floor beams and one of the girders about five by six feet in dimensions. This opening was over the place where the elevator shaft was to be constructed and it was open through the lower floors to the bottom. On this platform formed by the two planks the decedent and Bower, assisted by . the foreman, erected a gin pole extending over the opening and from which a block and fall were suspended by means of which floor beams were hauled up from the bottom. It does not appear that the foreman expressly directed the erection and use of the block and fall, but he assisted in the work and saw the men using the block and fall and helped deliver the material to be thus hauled up. The gin pole was securely placed and the block and fall attached about eleven o’clock in the forenoon, and from that time on until the accident, which occurred between one-thirty and two p. at., save the luncheon hour, the decedent and Bower were on this platform on- the third floor using the block and fall, hauling up beams' and unloading them on that floor. The foreman and two laborers below would fasten the loose end of the rope, suspended 'from the pulley to the center of a beam and would then, assisted by decedent and Bower, haul the beam up by drawing a rope over a pulley and when the beam was sufficiently. elevated to clear the platform, the decedent and Bower would swing it into a horizontal position and lower it onto the platform and then release the rope and one of them would then go to either end and they would slide or lift it off the platform onto other beams and out of their way. While thus assisting'in moving a beam out of the way or preparing to do so, the decedent must have in some manner lost his balance, for he fell through the opening and received injuries which resulted in his death.

The charge of negligence pointed out in the instructions given by the court to the jury was the failure of the defendant to furnish' decedent with a reasonably safe place in which to work. Counsel for the defendant duly excepted to this instruction. It is well settled that that rule of law is not applicable when the employees, as the work progresses, are constantly making and changing the place, which was the case here.

The court also, at request of counsel for plaintiff, instructed the jury, in effect, that this block and fall constituted an elevating machine or hoisting apparatus within the provisions of section, 20 of chapter 415 of the Laws of 1897, as amended by chapter 192 of the Laws of 1899, and that the failure of defendant to cause the opening in the floors to be inclosed or fenced in, as required thereby, was some evidence of negligence on its part. Counsel for defendant duly excepted and requested the court to instruct the jury that the statute was not applicable, and excepted to the refusal of the court to so charge. We are of opinion that this was error, for the reason that the third floor had not been laid, and, therefore, the statute imposed no duty at that time with respect to inclosing or fencing the opening. The statute provides as follows : “If elevating machines or hoisting apparatus are used within a building'in the. course of construction, for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to he enclosed or fenced in on all sides by a barrier at least eight feet in height.” This statute, manifestly, was not designed to protect the men employed in unloading the material at the top of a shaft or opening from falling into it, but rather to protect others working or lawfully on a floor which had been laid up to the shaft or opening from walking into it, and to protect all lawfully on the premises against falling material. This was neither a shaft nor an opening in the third floor, on which only the walls and girders and part of the floor beams had been laid, within the contemplation of the statute."

The judgment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., McLaughlin, Houghton and Scott, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. . 
      
      See Code Civ. Proc. § 1902 et seq.— [Rep.
     