
    Clarence Hammond, Respondent, v. Union Bag and Paper Company, Appellant.
    Third Department,
    December 30, 1909.
    Master and servant — negligence — injury by fall of scaffold — failure to instruct expert workman — facts not justifying recovery — appeal — theory at trial governs.
    An expert carpenter who has built scaffolds for many years and is familiar with the use of adjustable scaffold jacks cannot hold his-master for injuries received-by reason of his own failure to adjust such jack in a proper manner on the theory that he should have received instructions as to the manner of erecting the jack.
    One who holds himself out as skilled in a trade is in no position to insist that his employer is liable for a failure to instrnpt him in regard to u branch of the trade in which he is assumed to possess skill.
    
      Evidence examined, and held, that the scaffold collapsed not because of any defect therein, but because the plaintiff and his fellow-servant had improperly erected the adjustable jacks supporting the structure.
    Where the trial of a negligence action was conducted solely on the theory of the common-law liability of the master, the plaintiff on appeal cannot support an unwarranted judgment on the theory that the master had violated theEmployers’ Liability Act and the Labor Law.
    Appeal by the defendant, the Union Bag and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington, on the 19th day of May, 1909, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 9th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward M. Angelí, for the appellant.
    
      Henry W. Williams [Joseph A. Kellogg of counsel], for the respondent.
   Chester, J. :

The respondent has secured, a verdict against the defendant in an action for personal injuries. He was a carpenter and while engaged with a fellow-carpenter was injured by the fall of a scaffold upon which they were working in the erection of a mill for the defendant. They were directed by the defendant’s superintendent to use in constructing the scaffold certain patented adjustable scaffold jacks, and it required four of the jacks to make the scaffold which they used. Each jack was formed of two legs fastened at the top and spread at the bottom in the shape of a letter A,” with a headeij on the top of each jack where it was fastened by. clamps. From the center of the crosspiece of the jack a brace extended in a diagonal direction to the header to which it was fastened by an iron thumb screw clamp. The legs of the jacks were adjustable so that a scaffold could be constructed of any required height. In the present instance the scaffold was about six feet from the floor. The scaffold was so constructed that the legs could be placed in a vertical position in relation to the header or could be spread at the bottom by the adjustment of the clamps on one end of the brace extending from the legs, to the header. Across; these jacks planks were'laid to constitute the floor of the scaffold. The accident was caused by the slipping of one of the thumb screw clamps where it was attached to the header at the upper end of the brace and the plaintiff was precipitated to the floor and was injured. Nothing• about the scaffolding or clamps broke. The plaintiff was accustomed to the use of this scaffold, and in his trade as a carpenter had been- building scaffolds of different kinds for years. He and his fellow-carpenter put up the jacks and scaffold in question and had used them frequently on prior occasions. Much of the proof in behalf of the plaintiff was for the purpose of showing that the scaffolding jacks were not safe and suitable appliances for the use to which they were, put, and that the defendant gave no instructions to the plaintiff as to the proper method" of erecting the scaffold, the theory being that if there were two ways of ad justing the jacks, with reference to the angle of - the legs to the headers and to the lateral strain •on the braces, one of which was safer than the other, a duty devolved upon the defendant to instruct the plaintiff in reference thereto, but the plaintiff was a skilled tradesman and was employed as a carpenter. He was accustomed to the erection of scaffolds and was familiar with the use of this one. If any advice was needed as to the proper method of constructing or assembling such a scaffold upon whom could the defendant more properly rely than the plaintiff himself. A man who holds himself out as skilled in one of the trades and procures employment as such is. in no position to-insist that his employer is liable for failure to instruct him in a branch of' his trade in which lie must be assumed to possess the skill and knowledge necessary to properly pursue it. -

The plaintjff had the evidence of an expert that these jacks were insufficient. His opinion was formed not from having seen the/, jacks and not with any knowledge of the size of the timbers of which they wére formed or of their tensile strength or of the strain upon the clamps, but was based upon a picture of the jacks and upon the testimony, lie lieard in court about them. In addition to this there was the fact that the clamps slipped and caused the platform to fall. As against this evidénce there was the evidence of the defendant’s witnesses that these jacks had been used a great many times and had carried upon many occasions, prior to the accident, loads far heavier than was the one upon the scaffold at the time ■it fell. This evidence is practically undisputed except by the fact of the fall on the occasion in question. This makes convincing proof that the jacks fell not because of any inherent defect in them, but because they were improperly put together by reason of one of the thumb screws not having been sufficiently tightened. It is true that the plaintiff and his fellow-carpenter testified they thoroughly tightened them, and that in so doing they had used a wrench, but this evidence is incredible in view of what happened. The great weight of evidence is that the accident happened not because of any defects in the thumb screws, the jacks or the scaffolding, or because they were improper or unsafe appliances, but because they had not been properly put together and the clamps properly tightened by the plaintiff and his fellow-workman, and the verdict of the jury to the contrary has not sufficient support in the evidence to justify it.

It is urged here that our decision in Chiavaroli v. Union Bag & Paper Company (131 App. Div. 372) requires us, if we follow it, to affirm this judgment. That was a case where we reversed a judgment of nonsuit in an action brought by the plaintiff, who was an ordinary, unskilled day laborer, and who received injuries from the fall of this scaffold at the same time the plaintiff was injured. But the plaintiff in that case had nothing to do with the erection of the scaffold, and as he was nonsuited we were not favored with the defendant’s evidence with respect to the safety of the appliance, nor the uses to which it had been put on prior occasions in supporting greater loads than were on it at the time of the accident. The casó is, therefore, not against the position we now take.

The respondent also urges that because in his complaint sufficient facts were pleaded to justify a recovery under the Employers’ Liability Act (Laws of 1902, chap. 600) and under sections 18 and 19 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192), as well as under the common law, he could invoke these statutory enactments in support of his judgment. But the only question submitted to the jury was under the alleged common law. liability. The questions of the relation of the Employers’ Liability Act or the Labor Law to this accident, or of any liability of the defendant under either of these statutes were not submitted to the jury, have not been decided.in the'case, and are not here for review. Nór was there any request to submit these questions to the jury. While the courts will not reverse a correct -judgment becausé founded upon a wrong reason, we cannot assume to review questions that are not properly up for decision.

The judgment and.order should he reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to - appellant to abide event. ■  