
    Henry Hendrickson, Appellant, v. O’Brien Construction Company, Respondent.
    First Department,
    July 9, 1915.
    Master and servant—negligence—injury to carpenter while nailing railing pieces on concrete form — evidence establishing prima facie case.
    In an action under the Employers’ Liability Act it appeared that the plaintiff, a carpenter employed by the defendant, was directed by the foreman to get railings for a concrete form and put them on, and the forms would be ready when he returned; that the plaintiff had never worked on any of the forms; that when he returned there was nobody at the form; that there was no ladder or scaffold supplied, and that while the plaintiff was standing on the lower railing, nailing the top pieces, the form fell over, injuring him. Evidence held sufficient to establish a prima facie ease.
    Ingraham, P. J., dissented.
    Appeal by the plaintiff, Henry Hendrickson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of April, 1913, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.
    
      
      Charles A. Brodelc of counsel • [Harrie C. Manheim with him on the brief], Wilcox & Brodelc, attorneys, for the appellant.
    
      Edward F. Lindsay of counsel [James B. Henney, attorney], for the respondent.
   Clarke, J.:

This is an action under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352). The plaintiff, a Finn, was forty years of age. He was a carpenter and had been in this country twenty-two years. The defendant was engaged in the building of the subway at Morris Park. The plaintiff had been employed about a week and a half working on top of the subway. He was ordered under ground by the foreman. There was a concrete base in the subway about two or three feet high. There were iron uprights or posts on this base. He was directed to go with fifteen other men to bring a form over. ' The form was an open box-like structure, when completed, twenty feet long, five feet six inches in height, wider at the bottom than at the top, placed on the concrete base, in which concrete was poured. When the concrete set the sides of the form were taken off, and left a divisional wall tapering from the bottom to the top. Two of the sides of the form, that is the panels, were carried one at a time by the plaintiff and the fifteen other men with him to this concrete base, where they were directed to place it, and were stood up leaning against the posts, as he said, like a board fence leaning against the posts. In the process of preparing this form for the reception of the concrete the panels were kept apart by spreaders which were nailed between the two. They were kept together by wires which were laced from railings which were nailed at the top and at the bottom. The spreaders kept the space open for the concrete, the wires bound the sides together so that it held the concrete until it set. After the two panels had been so placed upon the base leaning up against the posts plaintiff testified that he received instructions from the foreman to . get the railing pieces, cross pieces that were to be nailed on the outside of the form. Three men went with him to get these pieces. They went around looking for them, they were not supplied in any particular place, they had to look for them. He was picking them up here and there. He was away from this panel about fifteen or twenty minutes. The two men who went for the railing pieces with him, and he, started to put the railing pieces on at the same time. They put on the lower pieces by nailing them fast. Then they started to put the top ones on. The position he occupied as they nailed them on was to hold the top of the form with the left hand. His feet were on the lower railing piece. The hammer was in his right hand, he was holding on that way, using the hammer with his right hand. The other men occupied the same position in holding on those top pieces. He had never worked on any of these forms before. He could not reach the top pieces to nail them on from the concrete base. There was no ladder or scaffold supplied. When he was nailing these top pieces the form fell over on him and he received the injuries complained of. He testified that when the foreman sent him away to get the railings he said, “Get the railing pieces, and as soon as you find them, put them on. * * * We will fix the forms by the time you will be back. Q. What did you understand him to mean when he said, ‘ We will fix the forms ?’ A. That he would set the forms ha their places, and have the foi'ms all fixed by the time we would be back with the railing pieces. * * * Q. Whether the form was fastened, or whether the spreaders were in, whether the wires were fastened in thei’e, or whether the form was in position, or whether anything was holding it up or not, you didn’t pay any attention ? A. There was no way to see it, whether there were spreaders in or not. I could not see whether the spreaders were in, but I didn’t look to see whether they were or not. There was iao way to see if they were in, the spreaders. * f * I thought they were all fixed. * * * Q. And when you got back the form was just in the same position as it was when you left, the one that fell on you ? A. I think it was but I was not sure, because I didn’t look. Q. It was in the same place, wasn’t it ? A. He ordered us away and told us it will be all fixed when we come back, and I thought it was all fixed. Q. What do you mean by ‘ all fixed ? ’ A. All secure. * * * He said, ‘We will have it all fixed at the time when you fellows comeback.’ * * * He said, ‘ Hurry up and get the railings, and we will have it all fixed.’ * * * I done just what he told us. -1 hurried up and got the rails, and we started in to get the form ready for the concrete, and before we got it ready and before we got it fastened, or wired, it fell over on me, and that is what happened. * * * Just before I was hurt the foreman told me to get the railing pieces. He said, ‘as soon as you find them put them, on.’ I was putting them on when I was hurt.”

One of the men who was working with him testified that he received instructions from the foreman. ‘ ‘ He said, ‘ Go ahead and get the railing pieces, and we will get the form ready for you when you get back.’ * * * We were away from the form while we were looking for these railing pieces about ten or fifteen minutes. When we got. back there was nobody at the form. We started to put on the railing pieces. * * * He told us to go and get the railing pieces, and he would have the form already set when we got back. ”

It seems to .me that there was a question presented as to whether or not the plaintiff had? a right to rely upon his foreman’s order to go and get the railing pieces and as soon as he got them to nail them on, by the time he got there they would be fixed and secure so they could get to work on them. If the foreman did state that, as two witnesses testified, and he did not fix the forms so that they were safe for the performance of the work which he had ordered, then a question would have been presented to the jury as to whether or not there ,was an act of negligence on the part of the foreman or superintendent for which the defendant was" liable. It seems to me that a prima facie case was made out which required the defendant to put in its evidence and, therefore, it was error to dismiss the complaint at the close of the plaintiff’s case.

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

Scott, Dowling and Hotchkiss, JJ., concurred; Ingraham, P." J., dissented.

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