
    Michael Ferrick, Appellant, v. Otto M. Eidlitz and Robert J Eidlitz, Respondents.
    Second Department,
    January 10, 1908.
    Master and servant — injury by collapse of shed — res ipsa loquitur.
    The plaintiff, an employee, was directed to demolish a shed which had been erected to protect dynamos and also to support laborers engaged in constructing a building. The structure consisted of two sections, separately supported. Having removed one section, the plaintiff went upon the other, which, before he commenced- to demolish it, collapsed to his injury. . In an action under the Employers’ Liability Act,
    
      Held, that the fall of the-structure was prima facie proof of negligence under the doctrine of res ipsa loquitur.
    
    Gaynor, J., dissented, with memorandum..
    Appeal by the plaintiff, Michael Ferrick, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on -the 1st day of April, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Queens' County Trial Term, and also from an order' entered in said clerk’s office on the 29th day of March, 1907, deny.ing the plaintiff’s motion for a new trial, made upon the minutes.
    
      Gilbert D. Lamb [M. P. O' Connor with him on the brief], for the appellant.
    
      Theodore H. Lord, for the respondents.
   Hooker, J.:

The defendants were engaged as contractors in constructing the Hotel Belmont in the borough of Manhattan, and the plaintiff was employed by them as a common laborer. In the -basement had been constructed a roof; or shed for the purpose of protecting the dynamos there located from dust and refuse. The structure was built by placing joists about twelve feet long between parallel steel girders. The joists were eighteen inches or two féet apart, and ordinary flooring planks had been laid transversely of the joists to form the roof of the structure. The joists were two by six inches. The ro®f of the structure had also' been used by plasterers and ■ steamfittex’s. '

On the day the plaintiff was injured he had been instructed by the defendants’ foreman to go upon this structure and take it down, by removing first the ffooiing planks and passing them to the floor • below, a distance of twelve or fourteen feet, and then removing the joists themselves. The structure was in two or more sections, with as many series of joists, each series being supported by its own steel girders at either end of the joists. The plaintiff had assisted in successfully taking down and removing one sectioxx of the structure, and had stepped upon another section'' for the purpose of removing it, when the section upon which he stepped collapsed, he was precipitated upon one of the dynamos and seriously injui’ed; for damages on account of his injuries he ha's brought this action. The complaint was dismissed at the close of all the evidencé, and from the judgment for the defendants the plaintiff appeals.

This structure, whether shed, scaffold or platform, was put to a twofold use: First, to protect the dynamos, and second, to support laborers while engaged in details of the construction of the building. It had served its usefulness, and was to be removed. It appeared that no changes had been made in its structural condition between the time it was used for those' purposes and the day the plaintiff was injured, except that one joist was cut about three-quarters of the way through to accommodate a pipe which had been run upward through the roof of the shed. The fall of that section of the shed upon which the plaintiff stepped, is not satisfactorily accounted for, but in our opinion the structure’s collapse itself was prima facie proof of negligence. The plaintiff stepped upon it for the purpose of taking it apart, but had not commenced to do so at the time it collapsed. One of the purposes for which .it was constructed was to support workmen. Its fall while being properly used in the manner for which it was set up was of itself evidence that it was unsafe, and presumed negligence on the part of those whose duty it was to provide for the plaintiff a safe place to work. (Stewart v. Ferguson, 164 N. Y. 553; Griffen v. Manice, 166 id. 188; Green v. Banta, 16 J. & S. 156; affd., 97 N. Y. 627; Haggblad v. Brooklyn Heights R. R. Co., 117 App. Div. 838; Johnson v. Roach, 83 id. 351.)

The plaintiff had nothing to do with the construction of the shed. The jury would have been justified in finding that the removal of the section .which had already been taken down had nothing to do with the structural condition of the section yet remaining,, for the joists of the latter were separately supported between independent steel girders.

The judgment should be reversed and a new trial granted, costs to abide the event.

Rich, J., concurred; Miller, J., concurred in separate memorandum ; G-aynor, J., dissented in memorandum; Hirschberg, P. <7., not voting.

Miller, J. (concurring):

I agree with my brother Hooker that the maxim res ipsa loguitur may be applied to the fall of the structure which caused the plaintiff’s injuries. The section which fell was entirely independent of the one which had just been taken down. The plaintiff had just gone upon it and had not begun to take it down, but I do not'think it is necessary to rely upon the maxim. It is in evidence that shortly after the- collapse of the structure a joist was discovered in the debris broken in two at a point where a hole had. been bored to ■ admit the passage of a pipe, leaving only, a narrow rim of wood- I think a jury would have the right to infer that the structure collapsed because of the weakened joist (it.was thirteen to fourteen feet long,'unsupported except by the beams at either, end), and we are.now testing.a dismissal of the complaint. The structure had been used as a scaffold by the steamfitters and plasterers, and the plaintiff had a right to. assume, when he was directed to go upon it by the superintendent, that it was safe. I think the plaintiff had a right to go to the jnry upon the question of the negligence of the superintendent (the case is brought under the Employers’ Liability Act) in sending the plaintiff upon this weak structure without warning him. The fact is proven that the joists were visible from below, and the superintendent himself testified that the structure “was not a very strong construction.” He says he warned the men to be careful because of that fact, but this was for the jury. I think the jury could have found from the evidence that the defendants’ superintendent sent the plaintiff upon a structure which he knew to be dangerous, without giving any warning of the danger. - If so, it was error to dismiss the complaint.

Gaynor, J. (dissenting):

, The fall was not in itself evidence of negligence. The maxim that the thing speaks for itself does not apply. They were 'tearing down the structure-—the rule of safe pláce to work does not apply.

Judgment and .order reversed and tieiy trial granted, costs to abide the event.' 
      
      Laws of 1902, chap. 600.-— [Rep.
     