
    Constantino Lorenzo, Respondent, v. Antonio S. Faillace and Salvatore Faillace, Appellants.
    Second Department,
    April 23, 1909.
    Master and servant — negligence — injury by fall of scaffold—presumption — act of fellow-servant.
    Where a servant is injured by the breaking of a scaffold furnished by the master, there is a presumption of negligence on the part of the' latter by virtue of section 18 of the Labor Law, and the servant is not required to prove any defect in the material used in the construction of the scaffold.
    But a master does not insure the safety of a scaffold, and where the uncontradicted testimony of disinterested witnesses shows that there was no defect in it, but that it broke because of the negligence of the plaintiff’s fellow-servant, the master is not liable.
    Thus, where it is shown without contradiction that there was no defect in the material from which the scaffold was constructed, and that the immediate cause of the break was the dropping of a heavy stone upon the scaffold by the plaintiff’s fellow-servants, contrary to instructions, the defendant is entitled to the direction of'a verdict in his favor.
    Appeal by the defendants, Antonio S. Faillace and another, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of January, 1908, upon the verdict- of a jury for $550, and also from an order entered in said clerk’s office on the same day, denying the defendants’ motion for a new trial made upon the minutes. "
    
      George C. Andrews [Joseph L. Glover with him on the brief], for the appellants.
    
      Frederick B. Van Kleeck, Jr., for the respondent.
   Burr, J.:

We think that the motion made at the close of the case to direct a verdict in favor of the defendants should have been granted. The action was brought to recover damages for personal injuries sustained through the fall of a scaffold upon which plaintiff was at work and which had been constructed by.defendants’ servants to be used in' connection with the erection of a building. The plaintiff proved that a crosspiece which ran from an upright post to the top of the wall and upon which the boards of the scaffold were placed, broke in the center and the scaffold fell and he sustained injuries in consequence thereof. Although he introduced no evidence from which the cause of the break might be inferred, nor any evidence of any defect in the material used in the construction of the scaffold except such as might be drawn from the fact of the breaking of the crosspiece, under the provisions of the Labor Law this'was sufficient in the first instance., (Laws of 1897, chap. 415, § 18; Stewart v. Ferguson, 52 App. Div. 317; affd., 164 N. Y. 553 Cummings v. Kenny, 97 App. Div. 114.) In the case last cited this court, speaking through Hr. Justice Woodward, said: “ The duty of the master, under the provisions of the Labor Law, is to use reasonable care to furnish safe appliances; "" * * and when a ladder, scaffold or other appliance mentioned in the statute breaks while in use for the purpose for which it was designed, it raises a presumption of negligence which, unexplained, justifies a recovery.” But a master is not an insurer of the safety of the scaffold (Pettersen v. Rahtjen’s American Composition Co., 127 App. Div. 32), and if the defendants introduce testimony of disinterested witnesses' to the effect that there was no defect in the timber which broke, but that the breaking was caused by the careless or negligent conduct of plaintiff’s fellow-servants in using the scaffold in a manner for which it was not designed to be used, • and. contrary to their express instructions, and there is nothing to contradict this testimony, either in the shape of direct testimony or circumstances tending to discredit the same, the presumption of negligence is completely overcome, and defendants are absolved from1 responsibility. (Cunningham v. Dady, 191 N. Y. 152.) In the case at bar, after the plaintiff had rested and the motion to dismiss had been denied, defendants introduced affirmative evidence that the. broken stick was examined immediately after the accident and found to be a piece of sound timber; they also proved by an entirely disinterested witness that the immediate cause of the break was the dropping a heavy stone weighing from ISO to 200 pounds by the fellow-workmen of plaintiff upon • the scaffolding at the point where it broke. The stones above referred to, which were to be used in the construction of the building, were carried onto the scaffold in handbarrows and the laborers who carried the stones were instructed to put these down carefully and then move the stone off. It appeared that the work was usually- done in this way, but at the time of the happening of the accident, instead of doing that, they dropped the stone, the crosspiece broke and the scaffold went down. The plaintiff was cross-examined in regard to the happening of the accident, and said that: I did not take any particular notice of them (the laborers) at the time they put the stone down on the scaffold. I did not notice, as a fact, that when those men delivered this stone on this scaffold, they dumped it off the handle bars'instead of laying it down on the scaffold as they were accustomed to do. * * * At the time the accident happened I did not notice whether those men dropped the stone or not. The only thing I noticed, the scaffold broke and down I went.” The court correctly charged the jury that if “ those two men that were carrying the stones to the plaintiff * * * came around there and threw those stones down in a reckless, careless way under their feet, and the scaffold was all right but they knocked it down in a careless way, and this plaintiff was injured by the carelessness of his fellow servants, then the defendants are not liable.” The application of this rule of law to the uncontradicted evidence should have compelled the granting of the motion made at the close of the case, for the evidence that the accident happened in exactly such a manner was neither contradicted nor discredited.

The judgment and order appealed from should be reversed and a new trial ordered, costs to abide the event.

Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.  