
    Thomas C. Stewart, as Administrator, etc., of Andrew C. Stewart, Deceased, Respondent, v. John W. Ferguson, Appellant.
    
      Contributory negligence — change to the jury, uhere a party, injured by the fall of a defective scaffold, .assisted in its erection and knew of its manner of construction.
    
    In an action brought to recover damages for the death of the plaintiff’s intestate, who, while in the defendant’s employ, was killed by the fall of the scaffold on which he was working, it is error for the court to refuse to charge that “ if the jury believe that the scaffold fell because of defective bracing, and also believe that Stewart, the decedent, assisted in the ereption of that part of the scaffold which fell, and observed and was fully acquainted with the details of its construction, the plaintiff cannot, recover.”
    Appeal-by the defendant, John W. Ferguson, from a judgment' of the Supreme Court in- favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of March, 1899, upon the verdict-of a jury for $5,000, and also from an order entered in said clerk’s office on the 24th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for the death of the plaintiff’s intestate, who, while in the defendant’s employ, was killed by the fall of a scaffold on which he.was working.
    
      John V. Bouvier, Jr., for the appellant.
    
      Edward P. Lyon, for the respondent.
   Patterson, J.:

On the former appeal in this action, it was held by this court (34 App. Dfv. 515) that since the enactment of the Labor Law (Chap. 415, Laws of 1897) a scaffold used by workmen in a building is to be regarded as a place furnished by the master upon which the servant is to work, and that the duty is devolved upon the master not to permit such place to be unsafe, unsuitable or improper, and that a servant of a master in erecting the scaffold acts as the master himself. The duty imposed by the statute upon the master of furnishing a safe and proper scaffolding upon which an employee is to do his work is imperative. He is responsible-for the safety of the appliance and cannot discharge himself of liability simply by showing that it was put up by fellow-servants of an injured employee. On the trial under review the insufficiency of the scaffold to bear the weight imposed upon it and its consequent insecurity was shown in the proofs, but a question is raised respecting the contributory negligence of the decedent which comes before us in a somewhat different aspect from that in which it was presented on the former appeal, and in respect of which there is a manifest error appearing on the present record in the refusal of the court to charge a request of the defendant. There - was evidence tending to show that the plaintiff’s intestate helped in the construction of the scaffold; that the cause of its fall was defective bracing; that the decedent knew of its condition and of the manner of its construction. The witness Green testified that the plaintiff’s intestate helped to put the braces upon the scaffold, and there was also proof tending to show that the decedent was present during the whole time the portion of the scaffold that fell was being built, and that the decedent observed what was done in connection with the construction of the scaffold, and that he could plainly see the condition of the scaffold when he went to work upon it; and there is also testimony to the effect that the decedent was acquainted with the construction of such scaffolding, and had been accustomed to “ seeing as to ” the scaffolding upon which bricklayers worked, for some two years before, he went into-the employment of the defendant. On this testimony, the counsel for the defendant asked the court to charge that “ If the jury believe that the scaffold fell because of defective bracing, and also believe that Stewart, the decedent, assisted in the erection of that part of the scaffold which fell, and observed and was fully acquainted with the details of its construction, the plaintiff cannot recover.” This request was refused and the defendant excepted.

The defendant was plainly entitled to the request. The error in refusing it is not cured by anything contained in the charge of the learned judge to the jury. The whole subject-matter of the request is not charged either directly or in substance. We have scrutinized the charge with care to see if all these elements were presented to the jury in such a way as to authorize us to say that the matters embraced in the request .were called to the attention of the jury, but they were not.

The learned counsel for the respondent stated on the argument that he did not know that this particular réqnest was submitted to the court, and that had he known it, he would not have objected, but would have concurred in the instruction being given to the jury. It may be very unfortunate that he is so situated, and it certainly is. without any fault on his part. We have nothing before us but what appears in the record, viz., that the request was made and an express exception taken to the refusal. The defendant was entitled to the instruction, and the refusal to give it is fatal error.

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

Yan Brunt, P. J., Rumsey and O’Brien, J.I., concurred.

Judgment reversed, new tidal ordered, costs to appellant to abide event.  