
    George Muench, Respondent, v. Steel and Masonry Contracting Company, Appellant.
    Second Department,
    February 28, 1913.
    Labor Law, section 18—“ scaffolds ”—injury by breaking of defective guy rope on hoisting apparatus—evidence—improper construction.
    The provisions of section 18 of the Labor Law are not limited to scaffolds and apply to a guy rope on a hoisting apparatus used in subway construction, although not used in connection with scaffolds.
    Evidence óf the plaintiff in an action to recover for personal injuries as to the use of a manila guy rope on said hoisting apparatus instead of wire, tending to show an improper construction of the appliance, is sufficient to require the submission of the case to the jury. ,
    Jenks, P. J., and Carr, J., dissented.
    Appeal by the defendant, the Steel and Masonry Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 30th day of April, ■ 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 7th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hector M. Hitchings, for the appellant.
    
      Thomas J. O’Neill [L. F. Fish with him on the brief], for the respondent.
   Rich, J.:

This appeal is from a judgment in favor of the plaintiff in an action brought to recover for personal injuries, and also from an order denying defendant’s motion for a new trial.

The plaintiff, an employee of defendant, while engaged in the employment, was injured by the breaking of a manila guy rope on a hoisting apparatus which was being used in a subway construction.

The notice under the Employers’ Liability Act was excluded, and the case was submitted to the jury under the provisions of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18), and under the common law.

The learned trial court charged the jury as a matter of law that the gin pole and stays forming the hoisting contrivance fell within the definition of section 18 of the Labor Law, and that the subway construction was a structure. It was also charged that the Labor Law applied to the situation developed by the evidence, and left it to the jury to determine whether the defendant used reasonable care in furnishing its employees “with this contrivance, erected as it was, and with the guys in the condition in which they were,” instructing them that if the defendant “ failed in using reasonable care, that is negligence, and unless there is some other reason why the plaintiff should not recover, he is entitled to' your verdict.” It is contended that the exception to that part of the charge submitting to the jury the question of defendant’s liability under the Labor Law presents error requiring a reversal of the judgment. This contention is based upon the assumption that the provisions of section 18 of the Labor Law are limited to scaffolds, and have no application to “hoists, stays, ladders or other mechanical contrivances” not used in connection with scaffolds. I think that the instruction to the jury was correct. The language of the statute is clear and explicit, and means exactly what it says, that is, that a person employing or directing the performance of labor of any kind, in the erection, repairing altering or painting of a house, building or structure, is negligent and responsible, if he furnishes, erects or causes to be furnished or erected for the performance of such labor, any appliance that comes within the prohibition, irrespective of whether it is used in connection with a scaffold, or upon a building or structure in which no scaffolds are used. (Michael v. Standard Concrete Steel Co., 55 Misc. Rep. 255; Cummings v. Kenny, 97 App. Div. 114; McConnell v. Morse Iron Works, 102 id. 324; Walters v. Fuller Co., 74 id. 388.), I think that the gin pole and stays in the case at bar constituted a derrick. In the case last cited a derrick was held to be a “hoist and mechanical contrivance,” and “ squarely within the provisions of the statute,” although it was not in use as a part of a scaffold. The evidence of the plaintiff tending to show the use of manila rope instead of a wire guy was an improper construction of the appliance, was such as to require the submission of the case to the jury.

The judgment and order must be affirmed, with costs.

Hirsohberg and Thomas, JJ., concurred; Jenks, P. J., and Carr, J., dissented.

Judgment and order affirmed, with costs.  