
    Vincenzo Chiavaroli, Appellant, v. Union Bag and Paper Company, Respondent.
    Third Department,.
    March 10, 1909.
    Master and servant—negligence—fall of scaffold — duty to furnish sufficient materials — evidence.
    The ditty rests óii a master to furnish proper and safe materials for the construction of scaffolds used by his servants.
    Where a scaffold constructed by .carpenters in defendant’s employ, and supported at each corner by “ jacks ’’ intended for such purpose, but not designed to support heavy weights, collapsed owing to the slipping of one of the jacks, aiid there is evidence that at the time the jacks were supporting nearly a ton-, a load, too heavy for them to sustain in safety, a laborer wlio-was injured; may ■ recover on the ground that the master was negligent in furnishing unsafe material.
    The co-operation of the negligence of a fellow-servant with that of a master does not excuse the latter. '
    The' fact that the 'jacks were hot placed vertically beneath the timbers by the carpenters, but slanted outward,, while weakening the scaffold by creating a greater strain- on the thumb screw clamping the jack to the timber, does hot exonerate the master.
    Under the-circumstances it was error to exclude evidence showing that the thumb screws used to clamp the jacks to the timbers' would gradually become loóse and fail'to-fulfill their purpose.
    Appeal by the plaintiff, Vincenzo Chiavaroli, from a judgment of the Supreme Court in favor of the defendant, entered in- the office of the clerk of the county of Washington, on the 12th day of May, 1908, upon the dismissal of the complaint by direction of the court-at the close of plaintiff’s- case upon a trial at the Washington Trial Term.
    
      Arnold, & Sherman [J. A. Kellogg of counsel], for the appellant.
    .King c& Angelí \Ed/uoard M. Angelí of counsel], for the respondent-- . '•
   Cochrane, J.:

The plaintiff, an-employee-of the defendant, was injured by the collapse- of a scaffold,, and brings this action- to .recover damages because of the alleged negligence of the defendant. His complaint was dismissed at the trial on the ground that he had established no negligence on the part of defendant.

The scaffold stood on a floor of a building which defendant was constructing for a pulp or paper mill. The top of the scaffold was about seven feet from such floor and a few feet underneath the rafters of the building. The purpose of the scaffold was to enable the workmen to fasten to the rafters crossbeams from which would be suspended the shafting of the machinery to be placed in the milh The floor of the scaffold consisted of planks sixteen feet long resting on two timbers thirteen feet long, one at each end of the planks. Each of those two timbers was supported at either end thereof by a device termed in mechanical nomenclature a “jack,” there being, therefore, one of these jacks at each corner of the scaffold. These jacks were ready-made and portable contrivances designed to act as supports for scaffolds wherever they could be utilized for that purpose, but were not designed to support very heavy weights. ' They were in shape like a capital letter “ A,” the legs thereof approaching each other at the top, where they clamped the connecting timbers above mentioned, which they supported, and on which timbers the floor of the scaffold was placed. There was also a brace extending from each jack diagonally upwards to such connecting timber and clamping thereto. These clamps were tightened and adjusted by means of thumb screws. The scaffold had been constructed the day before the accident by carpenters in the employment of the, defendant. Plaintiff was a common laborer, and had nothing to do With its construction, and so far as the evidence shows, was unaware of its insecurity.

At the time of the accident plaintiff had been directed to go upon the scaffold and assist in fastening said beams to the rafters. Such beams were then upon the scaffold, and there were also two men thereon and various material. The jury might have found from the evidence that the jacks were at that time supporting a load of nearly a ton. As plaintiff approached the scaffold it collapsed. One of the witnesses, who was on the scaffold when it fell, testified that he saw the clamp which connected one of the diagonal braces with the timber to which it was attached sliding along the timber. Evidently the thumb screw did not hold the clamp with sufficient firmness to the timber to withstand the weight on the jacks. It also appears that the jacks were not placed vertically, but slanted outwardly at the bottom. Obviously this had a tendency to weaken the scaffold by creating a greater strain on the thumb-screw pressure. ■

Independently of statutory provisions a prima facie case of negligence against defendant-was established. At common- law, if a servant constructed a platform according to his own judgment, the master was not liable for the manner of such construction,- providing he had furnished suitable materials therefor. (Kimmer v. Weber, 151 N. Y. 417.) The duty, however, rested on the master to furnish proper and safe material for the construction thereof. (Madden v. Hughes, 185 N. Y. 466, 470; Richards v. Hayes, 17 App. Div. 422.) The plaintiff produced evidence to the effect that these jacks were not suitable for heavy work, such as that to which they were being applied, and that they were insufficient to sustain in safety such a load as, was superimposed upon them at the time of the accident. From this' evidence the jury might have found that the defendant failed in its duty toward its employees in providing unsuitable, weak and insufficient materials or instrumentalities for the construction of the scaffold. . The jacks were provided by the defendant for use in the construction of this scaffold. There Is no question but what in so using them the carpenters who constructed .the scaffold were fulfilling the purpose of the defendant, and us.ing the means and methods which it had provided and indicated for that purpose. It is true the- jacks did not break, but one of them slid out from under its load because the thumbscrew pressure, was insufficient to hold in place the diagonal brace when the jack was not placed vertically. But their tendency to do so was what rendered .them unsuitable for that -kind of work, and the defendant was negligent in furnishing that kind of an unsafe and unsuitable device or appliance for the construction of the scaffold in the same manner as it would have been liable had it furnished weak or insufficient timber or planking or other material'. (Richards v. Hayes, supra.)

If there was- negligence on .the part of plaintiff’s fellow-servants in not' properly adjusting the' jacks such negligence on their part avails the defendant nothing. The rule on this point is-stated as follows in Stringham v. Stewart (100 N. Y. 516): “ Co-operation ,-of the negligence, of the master and a co-servant in the production of an-injury to an -employe, does not excuse the master from liability therefor. (Fuller v. Jewett, 80 N. Y. 46; Cone v. D., L. & W. R. R. Co., 81 id. 209; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546.) That a fellow-servant may, by care and caution, oper. ate a defective and dangerous machine so as not to produce an injury to others, does not exempt the master from his liability for an omission to perform the. duty .which the law imposes upon him of exercising reasonable .care.and prudence in furnishing safe and suitable appliances for the use of his servants. The rule which excuses the master under such circumstances presupposes that he has performed the obligations which the law imposes upon him, and that the injury occurs solely through the negligence of the co-employe.” (See, also, Coppins v. New York Central & H. R. R. R. Co., 122 N. Y. 557; Pluckham v. American Bridge Co., 104 App. Div. 404; affd., 186 N. Y. 561.) The negligence of defendant consists in placing in the hands of its servants these weak and insufficient jacks thereby affording an opportunity for an unwise and indiscreet use thereof. It is no answer that they might have been so used as to avoid accident. That principle if sound would exonerate a master from liability for many accidents. If he negligently permits an unsafe implement or appliance to be used it is no defense in an action by a servant that a fellow-servant used it unskillfully or improperly. Concurring negligence under such circumstances on the part of a fellow-servant does not excuse the employer.

I think also that the court erroneously excluded evidence offered for the purpose of showing that thumb screws used as in this case and under circumstances here appearing for the purpose of tightening the jacks to the connecting timbers would gradually become loose and fail to accomplish their purpose. The object of the testimony was to explain and indicate more fully the weakness of the scaffold.

It follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  