
    Jennie Drummond, as Administratrix, etc., of William Drummond, Deceased, Respondent, v. Alfred E. Norton Company, Appellant.
    First Department,
    April 4, 1913.
    Master and servant—negligence—injury to ironworker by fall through, openingjin floor — failure of contractor to plank floor — Labor Law, section 20, construed — evidence —: custom — assumption of risk.
    In an action brought under the Employers’ Liability Act to recover for the death of a structural ironworker, resulting from injuries received while in the employ of the defendant, a contractor for structural iron and steel work upon a building, it appeared that the plaintiff while assisting, under the direct orders of the defendant’s foreman, in the erection of a derrick oh the twelfth floor, fell backwards through an open space to the ninth floor; that there were no planks covering the space through which he fell, and that the defendant’s foreman had stopped the laying of the floor, leaving the open space through which the plaintiff fell.
    
      Held, that.the defendant was liable for failure :to cover the twelfth floor with planks, as required by section 20 of the Labor Law, and that a judgment in favor of the plaintiff should be affirmed.
    Evidence as to the custom of covering the floor with planks around the derrick was admissible as bearing upon the negligence of the defendant.
    Under the provisions of section 20 of the Labor Law, that “ If the floor beams are of iron Or steel, the contractors * * * shall thoroughly plank over the entire tier of iron or steel beams on Which the structural iron or steel work is being erected,” it is the duty of the employer to floor over , the whole space, with the exception of the places necessary to be kept open for hoisting1 purposes, stairways and elevator wells, and nothing should be done upon the floor in preparation for or anticipation of the actual work of further erection until the flooring has been completed.
    The only class of workmen properly subjected to the risks incident to the open floor after the setting of the beams are those employed in laying the planks.
    Appeal by the defendant, Alfred E. Norton Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of-New -York on . the 16th day of April, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 18th day of April, 1912, denying the defendant’s motion for a'new trial made upon the minutes.
    
      
      Frank V. Johnson of counsel [Amos H. Stephens, attorney], for the appellant.
    
      Ralph Gillette, for the respondent.
   Clarke, J.:

The deceased, William Drummond, was an ironworker in the employ of the defendant, a contractor for structural iron and steel work upon a building being erected by defendant. He was thirty years of age at the time of his death, earning five dollars per day and left surviving him his widow and a daughter five years of age. On November 9, 1910, about three-thirty p. m., Drummond was one of a gang of six men in charge of a foreman named Harris, when he met the accident which caused his death on November twenty-third following.

The beams of the twelfth floor had been put in position -and, by the derrick which had been , erected on the tenth floor, a number of columns had been hoisted to the twelfth floor. ■ The boards which had covered the tenth floor had been coHected and hoisted to the twelfth floor, but had not been laid so as to cover the whole floor. Then the derrick had been hoisted to the twelfth floor and the last occupant of the tenth floor had gone up to the twelfth. The panel at the locus in quo was nineteen feet two inches broad from east to west and seventeen feet three inches from north to south. The panel is bounded by the column beams and is subdivided into three spaces, the center one seven feet wide and the east and west spaces each six feet and one inch in width. The derrick has a heavy foot block upon which it rests and works when in position. It had been located just north of the center column beam bounding the southern extremity of the center space,so as to allow just space enough for the bringing up of the boom after the derrick was in position. The derrick had been erected and guyed. Drummond was ordered by Harris, the foreman, to cut loose the chain on the load tackle, and, sitting in a boatswain’s chair, he was hauled up about forty .feet and did cut it loose, but the tag fine fell between the load tackle lead and the mast, and when Drummond, after being lowered, standing on the westerly end of the foot block endeavored to get the tag line loose he took hold of the mast with his left hand and pulled upon the tag line with his right. On the second pull, this line came loose suddenly, Drummond lost his balance, stepped back' with his foot to save himself and went off northwesterly falling backwards through the open westerly space to the. ninth floor, forty feet below, receiving injuries resulting in death.

He was in "the ¡performance Of his work and duty under the direct orders of Harris, his foreman, who, it is conceded, was “ a person entrusted! with authority to direct, control or command certain other employees in the performance of their duties- so that his employer might be held responsible for injuries occasioned by his negligence under the Employers’ Liability Act, as amended by chapter 352 of the Laws of 1910.” There were no planks covering this space through which he fell. The space south of the panel in which the derrick was erected had been planked and rigging and materials were placed thereon, and one of the men ¡had started to lay, and had laid one plank in this space of this center panel when Harris directed him to stop and do some other work. The operation of raising the derrick from the tenth to the twelfth floor had commenced at about twelve, o’clock on that day and thé accident took place between quarter and half-past three.

Section 20 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36) provides as follows: “If the floor beams are of iron or steel, ¡the contractors for the iron or steel work of buildings in course of construction or the owners of such buildings shall thoroughly plank over the entire tier of iron or steel beams on which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such building, or such spaces as may be designated by the plans and specifications for stairways and elevator shafts.”

This accident Occurred on the 9th day -of November, 1910, and, therefore, after chapter 352 of the Laws of 1910, which amended the Labor Law, and article 14 thereof, known as the Employers’ Liability Act, which took effect on the first of September, was in. force. The notice was served under said act, and, as permitted by the new law, a, demand was .made for greater particularity, and in response thereto an amended notice was served, which notices are good.

The amendments to the act are very important. The act is entitled “An act to amend the Labor Law, in relation to employer’s liability.” Sections 200 and 202 of chapter 36 of the Laws of 1909 (Consol. Laws, chap. 31) are amended to read as follows:

“§ 200. Employer’s liability for injuries. When personal injury is caused to an employee who is himself in the exercise of due care and diligence at the time: 1. By reason of any defect in the condition of the ways, works, machinery or plant, connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, machinery or plant, were in proper condition; 2. By reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. The employee, or in case the injury results in death, the executor or administrator of a deceased employee who has left him surviving a husband, wife or next of kin, shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer nor- engaged in his work. * * * ”

Section 202 provides:

“ Assumption of risks; contributory negligence, when a question of fact. An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in all cases arising after this article takes effect, he considered as including those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employees, and has complied with the laws affecting or regulating such business or occupation for the greater safety of such employees. In an action brought to; recover damages for personal injury or for death resulting therefrom received after this act takes effect,. owing to' any cause, including open and visible defects, for ¡which the employer would be liable but for the hitherto available defense of assumption Of risk by the employee, the fact, that the employee continued in the service of the employer inj the same place and course of employment after the discovery by such employee, or after he had been informed of the danger of personal injury therefrom shall not be, as matter of fact or as matter of law, ¡an assumption of the risk of injury therefrom, but an employee, or his legal representative, shall not: be entitled under this article to any right of compensation or remedy against the employer in any case where such employee knew of the defect or negligence which caused the injury and failed, within a reasonable time, to give, or cause to be given, ¡information thereof td> the employer, or to some person superior to himself in the service of the employer, or who had intrusted-to him some superintendence, unless it shall appear on the trial that such defect or negligence was known to such employer, or superior person, prior to such injuries to the employee; or unless such defect could have been discovered by such employer by reasonable and proper care, tests or inspection.” And ,the chapter was amended by adding section 202-a, which provides: “Trial; burden of proof. . On the trial of any action brought by an employee or his personal representative to recover damages for negligence arising out of and in the Course cjf such employment, contributory negligence of the injured employee shall be a defense to be so pleaded and proved by the defendant.”

•In my opinion the liability of the defendants rests upon the requirements of section 20 of the Labor Law, supra: “If the floor beams are of iron or steel, the contractor's *’ * * shall thoroughly plank jover the entire tier of ¡iron or steel beams ,on which the structural iron or steel work is being erected.” The learned trial court said to the j ury: “I charge you that this statute is a measure f jrr the benefit of workmen engaged in steel construction such as Drummond was in this instance; that the words is being erected ’ are words of identification and not of limitation; they do not limit the time when the planks must be put down, but they identify or designate the tier which is to be thoroughly planked over, as for example, the tier on which the iron work is being erected in contradistinction to the tier on which the iron work has just-been completed. If the view I take of this statute is right, it requires the contractor to thoroughly plank over the entire tier on which the structural steel work is being erected except the excepted places, as soon as practicable after the tier below is finished and before the men begin to face the perils of work thereon. It includes the work which is preliminary to erecting steel on that tier as well as the actual placing of the steel in the vertical position. Therefore, it becomes important upon this second branch of the plaintiff’s case for you to determine whether the space which was left and through which Drummond fell was reason-' ably required for the construction of the steel work, or for the raising and lowering of materials to be used in the construction of such building.”

A specific exception was taken by the defendant to the court’s interpretation of section 20, arid especially with respect to the language therein that the words “ ‘is being erected ’ are words of identification and not limitation; that the act requires that the beams be planked over as soon as practicable after they had been removed, regardless of whether they are erecting iron above that tier of beams or not.” If the trial court’s interpretation of this section of the Labor Law is erroneous this judgment cannot stand, because in the charge and in the rulings upon requests to charge his view was so forcefully made manifest that it would be impossible to ignore it. Of course there is a period of time after the iron or steel beams are erected when they cannot be covered and when employees thereon are subject to risks of the employment which are open and obvious and do not proceed from any negligence of the employer or any failure of statutory duty but are inherent in the nature of the business itself. The men, for instance, who are laying the floor are subject to these risks.

The appellant insists that a similar claim has already been passed upon by this court in the case of Stephan v. Heckscher (143 App. Div. 932), in which the plaintiff appealed from a judgment and an order setting aside a verdict and dismissing the complaint, which judgment and order were affirmed, without opinion. In that case he says the facts and the contention made in behalf of plaintiff were almost identical to those in this case> the only difference being that the decedent in that case was sent to tighten a turnbuckle while a derrick was being erected at a.place where the beams had not been planked over, and in this case the decedent was performing other duties in connection with the placing of a derrick where the beams were not thoroughly planked over.

The Stephan case is clearly distinguishable. That case was brought under the Employers’ Liability Act prior to the amendment- of 1910. The trial court dismissed the complaint on the ground that the notice being defective,, the case stood as an action at common law, andtheplaintiff’s intestatehad assumed the risk. Knisley v. Pratt (148 N. Y. 372), upon which the respondents in that action relied, has ¡been since overruled. (Fitzwater v. Warren, 206 N. Y. 355.)- Furthermore, the intestate in that case, while tightening a turnbuckle, fell from the second tier at a time when the tier below had not been completed, whereas in the case at bar no question is raised as to the sufficiency of the notice; the twelfth and all the lower tiers had been completed, and the work had advanced to a further stage, as the mast and footblock had been placed in permanént position and the turnbuckle tightened and three or four loads of iron for the erection of the columns had been landed on the twelfth tier. Cain testified:. “Prior to the accident there were three or four drafts of iron hoisted from the tenth floor and landed on the twelfth. Those loads consisted of columns. * A * Prior to the timé when those loads of iron were raised to the twelfth tier, the floor beams of the whole twelfth tier were all put in position and bolted. ”

I tbimk that a reasonable construction Of this statute requires us to hold that upon the setting and bolting of the floor beams it became the duty - of the employer to then floor over the whole space, with the exception of the places necessary to be kept open for hoisting purposes, stairways and elevator wells, and that nothing should have been done upon the floor in preparation for, or anticipation of, the actual work of further erection until that duty, prescribed by the statute, had been accomplished. In other words, that the only class of workmen properly subjected to the risks incident to the open floor after the setting of the beams were those employed in the laying of the floor. There is evidence in this case that the foreman stopped the laying of the floor in the vicinity of. this derrick and that that positive interference caused the open space through which the deceased fell. We think there was no error in the charge in this regard.

The appellant complains that evidence as to custom in planking over was erroneously admitted. I do not think so. The recognized custom of a trade, business or occupation is admissible. (Dick v. Steel & Masonry Contracting Co., 153 App. Div. 651; Shannahan v. Empire Engineering Corporation, 204 N. Y. 543.) Especially, when the court is trying to find out whether the terms of a statute apply to the particular situation presented. If it was practicable, if it was the custom, to floor over at this stage of the work and around this instrument, proof of a violation of that custom was fairly admissible .as bearing upon the negligence of the defendant, because the violation of the statute was only evidence of negligence and not conclusive."

We have examined carefully the whole record and considered the points raised but find no grounds to disturb the judgment. No complaint is made of the size of the verdict.

The judgment and order appealed from should, therefore, be affirmed, with costs to the respondent.

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

Judgment and order affirmed, with costs.  