
    John H. O’Neil, Respondent, v. Manufacturers’ Automatic Sprinkler Company, Appellant.
    Second Department,
    February 17, 1911.
    Blaster and servant — negligence — injury by defective scaffold — pleading— complaint stating action at common law and cause under Employers’ ¡Liability Act — when no election — when servant not engaged in building scaffold — charge.
    Where, in answer to the defendant’s motion to compel the plaintiff to elect whether he will proceed at common law or "under the Employers’ Liability Act, the plaintiff’s counsel states that he will “ elect to proceed under the Employers’ Liability Act, in addition to any other rights that we may have under the law of the land,” there is no election.
    Where the complaint is broad enough to embrace an action at common law as well as one under the Employers’ Liability Act, the court may regard the notice served under the act as surplusage, and submit the case as one at common law.
    Where a master installing a sprinkling system on a dock had, for the purpose of carrying on the work, placed joists spaced five feet apart, supported at the ends by angle irons, and loose planks were laid upon the joists to be shifted as the work required, a servant who was injured by the breaking of a defective joist while engaged in shifting a plank laid thereon was not at the time building a scaffold, and it is proper to submit the question of the master’s liability under the Labor Law.
    Under such circumstances it is not error to refuse to charge that if the jury find that the only work the plaintiff was directed to do was to move planks upon the joists, he was not a person directed to perform labor of any kind in the erection, repair or altering of a structure within the provisions of the Labor Law.
    In such action- it is not error to charge that the scaffold under the law was required to bear four times the weight which the plaintiff said he put upon it, and having fallen, it is within the province of the jury to find'the defendant negligent in not furnishing a safe scaffold.
    Appeal by the defendant, the Manufacturers’ Automatic Sprinkler Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of May, 1910, upon the verdict of a jury for $17,000, and also from an order entered in said clerk’s office on the 26th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Among other things the court charged the jury that the scaffold under the law was required to bear four times the weight which plaintiff said he put upon it, and it having fallen, it is within the province of the jury to find that the defendant was negligent in not furnishing plaintiff with a safe scaffold.
    
      Bertrand L. Pettigrew, for the appellant.
    
      Don P. Almy [Arthur J. Levine with him on the brief], for the respondent.
   Jenks, P. J.:

This action is by servant against master for negligence whereby a scaffold fell and brought the servant down with it. The fall was caused by the break of a joist of wood 16 or 18 feet long and 4 inches by 4 inches. An examination of it after the accident showed that it was cross-grained at such an angle that the grain passed from one side to the other in a space of 3 feet. There was also shown an old crack along this grain, extending into the thickness of the wood to an extent variously estimated by witnesses from !■§■ to 3 inches. There is evidence that this defect weakened the strength and supporting power of the joist, and that the defect could have been discovered by proper inspection. It is not urged upon this appeal that the verdict is against the weight of evidence.

At the opening and the close of plaintiff’s case the defendant moved that the plaintiff elect whether to proceed under the common law or the Employers’ Liability Act. The motions were denied under exception, but the plaintiff’s' counsel said that he would elect to proceed under the Employers’ Liability Act, in addition to any other rights that we may have under the law of the land.” This declaration does not state an election. It is as if the plaintiff had said that he would elect to proceed under the Employers’ Liability Act and his rights at common law and under any statute law that might be available. As I read the record the learned court did not submit the case to the jury as one of liability under the Employers’ Liability Act.' The complaint is broad enough to embrace a common-law as well as a statutory liability, and, therefore, the court could regard the notice as surplusage and could submit the ease under the common law. (Kleps v. Bristol Manufacturing Co., 189 N. Y. 516.) I think that the learned court did not err in submitting the case to the jury under section's 18 and 19 of the Labor Law. (Flanagan v. Carlin Construction Co., 134 App. Div. 236, and cases cited.) The work of the defendant was the installation of an automatic sprinkling system in a dock. The system embraced a number of pipes attached to a metal frame that supported the roof of the dock. The dock was 135 feet wide and 1,400 feet long. There were columns set up 21 feet in height, on which rested angle irons which supported the trusses of the roof. These columns and angle irons divided the dock into oblongs 15 by 45 feet. The scaffold used for the installation was made as follows: Joists of timber 4 inches by 4 inches, 16 or 18 feet long, were placed about 5 feet apart across one of the oblongs from angle iron to angle iron. Across these timbers were placed two planks, each 10 inches wide, 2 inches thick and 16 feet long. The planks were loose so that they could be shifted as occasion required. The plaintiff testifies that he had been working as a pipefitter for the defendant and that, on the day of the accident, the defendant’s foreman told him to go down to the lower end of the dock and said that they would start to do something down there. They proceeded down the dock, and the foreman pointed out a' place and said, “ Go up there and we will begin work up there; we will begin installing this > line; ” but that he said first, “ shift them planking over.” The plaintiff went up a ladder accompanied by Vetter. Vetter started to shift his end of a plank and plaintiff walked across, went on to the angle irons and proceeded to the point where the other end of the plank lay: He stepped one step onto a joist and reached down to take hold of the plank, when the joist broke and threw him to the floor, which was 21 feet below. The plaintiff was not, I think, engaged in building a scaffold when he attempted to shift the plank The construction of the scaffold was complete notwithstanding these planks remained, as they were designed, movable. (Cunningham v. Sicilian Asphalt Paving Co., 49 App. Div. 380.) The work' of the plaintiff was in shifting a completed scaffold, or, more accurately, a part thereof. Defendant’s witness, the foreman, testifies: “ That scaffold had been up there about three days at the time of the accident.” And he, also testifies that the plaintiff helped to build it on Thursday or Friday preceding the accident; and the dockmaster called by the defendant describes the act of the plaintiff at the time of the accident as “ moving a scaffold.”

I think that the learned trial court did not err in refusing to charge the 5th request of the defendant, which is as follows: “If the jury find that the only work the plaintiff was directed to do upon joists was in connection with the removal of planks from one side of the bay to the other, he was not a person directed to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure, within the provisions of section 18 of the Labor Law, and their verdict should be for the defendant.” This is tantamount to saying that, although the servant was directed to do work which required the use of the scaffold, of which a movable part must first be shifted, he was not engaged in the work when he was required and directed to ascend the scaffold for the purpose of shifting a part of it and was doing so at the time it fell. His testimony is that he was only told to “ shift them planking over,”' and it does not appear that the method used was improper, contrary to any direction or unusual. The plaintiff might have been required to stand upon the joists only to move the planks, and yet, if his work required him to move the planks when the planks were moved, it was that work which determined whether he was a person directed to perform labor in the “ erection, repairing, altering ” a structure within the provisions of section 18 of the Labor Law. But we need not go so far. (Swenson v. Wilson & Baillie Mfg. Co., 102 App. Div. 477.) I see no error in the charge as to the res ipsa, loquitur. (Stewart v. Ferguson, 164 N. Y. 553.)

The evidence suffices to support the verdict, and I advise that the judgment and order be affirmed, with costs.

Present — Jenks, P. J., Bdrr, Thomas, Carr and Rich, JJ.

Judgment and order unanimously affirmed, with costs.  