
    Michael J. Ryan, Respondent, v. Henry C. Irons and John R. Todd, Defendants, Impleaded with George H. Toop, Appellant.
    First Department,
    June 15, 1906.
    Negligence—injury to employee of one contractor on stairway under construction by another contractor — safe place to work — assumption of risk.
    A contractor engaged in erecting a stairway in a building is not bound to furnish a safe place to work to the employee of another contractor engaged in plastering. Hence, when such employee, instead of erecting a scaffold on which to do his work, uses for that purpose a stairway in the process of construction by another contractor, which is incomplete and not used for travel, he does so at his peril and cannot recover for injuries received by the giving way of an unfinished tread of the stairway. A person cannot be held liable for negligence unless some duty devolved upon him.
    O’Brien, P. J., dissented, with opinion.
    Appeal by the defendant, George H. Toop, from a judgment of ' the Supreme Court in part in favor of the plaintiff (the complaint having been dismissed as to the defendants Irons and Todd), entered in the office of the clerk of the county of Hew York on the 6th day of December, 1905, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 5th day of December, 1905, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Frank Verner Johnson, for the appellant.
    
      Gilbert Ray Hawes, for the respondent.
   Houghton, J.:

The defendant Toop was the contractor for the iron work, including stairways, for a hotel in the city of Hew York, in process of erection. The plaintiff was in the employ of one who had the plastering contract for the same building.

The defendant had erected the iron stringers and risers of the stairway, and had put in position, but not bolted, the sheet iron treads upon which, when finished, the stone treads were to be placed. These sheet iron treads were not intended to walk upon, but were for the purpose of protecting the stone treads from fire underneath, and before the stone treads were placed on them they were to be bolted to the iron framework.

The plaintiff was directed by his employer to plaster the side walls of the stairway between the two upper floors. This he proceeded .to do, and, instead of erecting any staging or placing any plank, he attempted to perform the work by standing on this uncompleted stairway, and his weight forced one of the unbolted sheet iron treads through the opening and he fell to the floor below and sustained the injuries for which he brings this action.

The stairway was not used or in condition to be used for ascent or descent in the building. Another stairway had been provided for that purpose.

Plaintiff insists that the defendant was negligent in not bolting the sheet iron treads, or in not fitting wooden treads over them, or in not barring the stairway, or in not maintaining a-sign of danger. We do not think the defendant was bound to do any of these things. The difficulty with plaintiff’s position is that the defendant was under no obligation to him to provide a safe place in which he might perform his work. A person cannot be held liable for injuries received because of a defective way or structure unless it be his duty to erect or maintain such way or structure in a reasonably safe condition.

It was not a situation where the defendant led the plaintiff into the belief that he might use the stairway with safety or where an insecure covering had been placed over a hole in a floor over which one might be expected to walk. The stairway was in process of erection and incomplete, and not in condition to be used for travel, and was not used for that purpose. The plaintiff could use it to reach the wall which he was plastering if he desired, instead of erecting any other structure for that purpose; but if he did use it, he did so at his own risk and at his own peril.

Under the facts disclosed the plaintiff failed to prove any cause of action against the defendant and his complaint should have been dismissed.

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

Patterson, Ingraham and McLaughlin, JJ., concurred; O’Brien, P. J., dissented.

O’Brien, P. J. (dissenting) :

The details of the construction of the staircase and its condition at the time, as well as the way in which the accident occurred, are sufficiently set forth in the prevailing opinion of Mr. Justice Houghton. The facts appear that at the time of the accident the staircase upon which the plaintiff was injured was apparently safe; that the plaintiff, without negligence upon his part, went upon it to plaster the side walls of the stairway. There is also testimony in the case to show that there was a custom of plasterers to use the staircases, instead of erecting scaffolding, while plastering these side walls, and that it was the custom of those erecting the staircases either to bolt the sheet iron treads to the risers and stringers or to put on temporary wooden treads or to give notice that the staircase was unsafe, all of which the defendant failed to do.

While there is no contract relationship between the plaintiff and the defendant which imposed upon the latter the duty of furnishing a safe place to work, or other duty, nevertheless I think that the defendant, under the facts in the present case, is liable for the injuries sustained by the plaintiff upon the well-established principle of law that one should not subject an innocent person to injury by means of a trap.

The plaintiff here was in no sense a trespasser, nor was he a bare licensee. As an employee of a contractor engaged upon the building he had a right equal to that of the defendant in any part of the building to which the duties of his employment carried him. It was a part of his duty to plaster the side walls of the stairway. Under the custom testified to above, and I think even in the absence of any such custom, it was not only natural and reasonable that’ the plaintiff should use the stairway instead of erecting independent scaffolding, but, as it would economize time and labor, it was his duty to do so if such use could be made safely. The defendant was not obliged to provide a staircase suitable for plaintiff to work upon, but, in my judgment, if he erected one he was under the obligation not to leave it in such a condition that it would constitute a trap.

I think the judgment appealed from should be affirmed.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.  