
    Mary E. V. Murphy, as Administratrix, etc., of John Murphy, Deceased, Respondent, v. American Ice Company, Appellant.
    First Department,
    February 2, 1912.
    Master and servant — negligence — action for death — contributory negligence — fall from scaffold — guard rail.
    While in an aetion to recover for the death of a person, where there were no eye witnesses of the occurrence, slight evidence of the deceased’s freedom from contributory negligence will suffice, nevertheless some fact or circumstance must be proved from which it can be inferred that the deceased exercised due care.
    Where in an action to recover for the death of plaintiff’s intestate to which, there were no eye witnesses, it appears that as he was carrying one end of a timber on a scaffold which had been erected with stationary supports upon the floor of a building he fell under the outside guard rail to the floor forty feet below, that no part of the scaffolding gave way or broke and that deceased did not and could not have tripped over anything, and there is evidence that on the morning of the accident he complained of his leg saying he was afraid it “ was going back on him,” and all the facts shown are as consistent with carelessness in walking, tripping over his own feet, a turned ankle, or an attack of dizziness as with any other explanation of the accident plaintiff cannot recover as there was no proof of the deceased’s freedom from contributory negligence. Moreover, where it appears that the scaffold was of new material and was properly constructed, except perhaps for the guard rail which was a little outside the edge of the planking, and it further appears that deceased made suggestions as to the erection of the scaffold and said he wanted no guard rail, and the Labor Law did not at that time require one on such scaffolds, and it does not appear that the position of the guard rail was the proximate cause of the accident, there is an entire absence of proof of negligence on the part of the defendant.
    Prior to the amendment of 1911 the Labor Law did not require a guard rail to be placed upon a scaffold built upon the floor of a building.
    Appeal by the defendant, the American Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of May, 1911, upon the verdict of a jury for $3,750, and also from an order entered in said clerk’s office on the 15th day of May, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Frank A. Gaynor, for the appellant.
    
      P. J. Dobson, for the respondent.
   Dowling, J.:

The. decedent, John Murphy,. was employed by defendant as a carpenter, and on October 31, 1906, at about eight a. m., was performing the duties of his employment in the ice plant of defendant at Flatbush avenue; and East Thirty-second street, in the borough of Brooklyn, city of New York. His work required him to be upon a scaffold, which at this time had reached a height of some forty feet from the floor, and from which the carpenters were engaged in sheathing the interior wall of the building. This scaffold was constructed by first placing uprights, each four inches by four inches and twenty feet in length, on the floor at distances of ten feet or less and about three feet from the side wall. As the advancing work required a greater height, other uprights were set upon the first ones, bolted thereto and with plasters on all sides, so .that the structure was rigid and practically continuous. Crosspieces were run from the uprights to the side wall at the desired levels, nailed to the uprights ahd with projections allowed to remain thereover to prevent any danger of splitting, and secured on the other side by being nailed on steps of wood, which in turn were nailed to the wall of the building. Upon the crosspieces were laid two planks, side by side, with an interval of an inch or two between them, and each two inches by twelve inches and twelve feet long, thus extending at each end beyond a crosspiece. Between the wall and the first plank was a space of from eight to twelve inches, to allow of the workmen’s sitting on the plank while working, and beyond the second plank was a guard rail, three feet above a point six or eight inches beyond that plank. The scaffold was composed of sound and new wood. At the time in question Murphy and a fellow-workman named Aber were engaged in carrying a piece of sheathing along the upper platform of the scaffold, each holding one end of the timber. Aber was walking backward, and Murphy forward. While about to put down the timber Aber bent over, and feeling a jar looked around and saw Murphy falling head first from the platform, under the guard rail, still clutching the timber. He fell to the ground and sustained injuries causing his death. No part of the scaffolding gave way, or was injured or broken in any way, save some guard rails on the lower level which were broken by the body in its fall.

Plaintiff has recovered a judgment herein from which this appeal is taken, and defendant contends that there is an entire absence of proof of any negligence upon the part of defendant, and as well of freedom from contributory negligence upon the part of decedent. Both these contentions are well founded. While it is true that in the case of the death of an injured party, where there are no eye witnesses of the occurrences, slight evidence may suffice, there must still be some fact or circumstance proven from which an inference may be drawn that the deceased exercised due care. Here the cause of decedent’s fall is totally unexplained. It does not appear that he tripped over anything or that there was anything over which he could possibly have tripped. The planking over which he was walking was not uneven, nor were there any. defects therein. He was walking forward, holding a timber, which.he still clutched as he fell. He fell under the rail, not against it. Nothing connected with the scaffolding broke, yielded or overturned. All the facts proven were as consistent with carelessness in walking, tripping over his own foot, a suddenly turned ankle or an attack of dizziness, as with any other explanation. It is in evidence from the cross-examination of plaintiff’s witnesses Aber and Rodgers that he had complained that very morning of having some trouble with his leg and of being afraid “ it was going back on him.”

Nor was there any sufficient proof of negligence upon the part of defendant. The scaffold was constructed of new material. There is no attempt to show that it was improperly constructed in any way, or that it could have been more safely built, save in the particular of the guard rail, which it was claimed should have been directly over the edge of the planking. This is not testified to by any competent expert, nor is the position of the guard rail shown to have been the proximate cause of the accident. There is evidence that Murphy was consulted about the erection of the scaffolding, made some suggestions about it, and said he wanted no guard rail, as it would be in the way and a nuisance, because the boards would have to be brought up either over or under it. Nor did the Labor Law as then in force require specifically that a guard rail should be placed upon a scaffold built upon the floor- of a building. The provision in question was.as follows: A person employing or

directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders- or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged. Scaffolding or staging swung or. suspended from an overhead support, more than twenty feet from the ground or floor, shall have a safety rail of wood, properly bolted, secured and braced, rising at least thirty-four inches above the floor or main portions of such scaffolding or staging and extending along the entire length of the outside and the ends thereof, and properly attached thereto, and such scaffolding or staging shall be so fastened as to prevent the same from swaying from the building or structure. ” (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 18.) In the case at bar the proof does not bring it within the provisions of the first sentence, and the second sentence does not apply, for this was not a swinging or suspended scaffold, but a fixed and supported one. The requirements before quoted were re-enacted in the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18), but have since been amended so as toi compel the providing of a guard-rail for scaffolds erected with stationary supports when they are more than twenty feet from the ground or floor. (Labor Law, §18, asarnd. by Laws of 1911, chap. 693.)

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

Ingraham, P. J., McLaughlin, Laughlin and Miller, JJ., concurred.

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