
    Thomas Hogan, App’lt, v, George S. Field et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1887.)
    
    Negligence—Contributory—Is a bar to an action eor damages.
    A person in the employment of another who, in common with others, participates in the erection of scaffolding for the purposes of his work, and makes no objection to the material used or the manner of construction, cannot maintain an action against his employer to recover damages for injuries sustained by him by reason of a defect in the structure.
    Appeal from a judgment recoyered on the dismissal of the complaint at the circuit.
    
      William H. Sheppard, for app’lt; Joseph H. Choate, for resp’ts.
   Daniels, J.

The plaintiff was injured in January, 1883, by falling from a scaffold upon which he, and others were working as riveters, in the erection of a bridge near Highland Falls. He and the persons working with him were in the employment of the defendants and under the general direction of their superintendent. The scaffold from which he fell was about twenty-eight feet above the floor beams and near thirty feet in length. It fell in consequence of the breaking of one of the scantlings used in its construction, at a point where it contained a knot, and it was generally described as cross-grained and wind-shaky. The scaffolding had been used by the riveters one day, and then it was moved by them for use at a different place, in the construction of the bridge, and on the second day the timber broke and the plaintiff fell to the ground a distance of about thirty-three feet.

But neither the defendants nor their superintendent took any charge, or direction, of the construction of this scaffold. There were two piles of timber not far from the bridge from which the material was to be obtained for the erection of the scaffold, and the service of erecting the scaffold was committed to the plaintiff and Hutchinson, another riveter, working with him, and McCaulley, who was a holder-on. Hutchinson selected the timber for the scaffold and with the assistance of other men, it was taken to the place where the scaffold was erected. There it was received by the plaintiff and McCaulley. It was hoisted with ropes to its position, where it was received by the plaintiff and McCaulley, who lashed it at the ends with ropes, McCaulley being at one of the posts and the plaintiff on the other, and the scantlings were lashed to the posts. The plaintiff’s testimony was that they fixed it to suit themselves, and lashed it to suit themselves, through the direction of Rockwell, the foreman. No posts, or supports were placed under the middle of the scaffold, but it seems to have rested wholly on the posts to which it was in this manner secured. And while they were rigging it up the plaintiff testified that there was no other person upon it but himself, Mc-Caulley and Hutchinson. It appeared further from the testimony of Hutchinson that they did not consider it important to fasten the scantling in the centre. His statement was: “We did not consider it necessary for this ■ stick; Hogan, McCaulley and I talked about it, and there was something said about tying it up. We looked at the stick and we concluded the stick was good enough. We did not have as much confidence in the one that did not break, and we concluded we would tie it up. We spoke of tying them both up in the centre, and we concluded that the one that broke was the best and soundest-looking one.” It is not clear from the evidence of Hogan on his re-examination, that he intended to deny this statement, but he did say that he heard no conversation between anybody upon the subject of using ropes to suspend the scaffold in the centre. It was further proved that there was other timber which might have been used in the erection of the scaffold, and there was no evidence of inability to obtain entirely sound timber from the piles to which these persons had access for the erection of the scaffold.

Under this evidence it is very clear that the scaffold fell by reason of the inattention and carelessness of the persons employed in its construction, of whom the plaintiff was one, and, as McCaulley testified, was a leader.'

It is true that the construction of the scaffold was no part of the business of the riveters, but, undei the direction of the person in charge of the work, they, without objection, undertook the erection of the scaffold, and had the control and management of the work. It was left so far entirely to themselves. They could have secured it by ropes in the center, or by supporting it from beneath, if they had been disposed to do so, or by using other or a larger amount of timber in its construction, and in that manner have assured themselves against the risk of accidents in the performance of their work while standing upon the scaffold. Their failure to do this was negligence with which the plaintiff equally, at least, with the others, was chargeable, and it waslbecause of that negligence that the scaffold gave way and he fell to the ground and received this injury.

The case is not within the general principle applied in Benzing v. Steinway (101 N Y., 547), for the work was wholly entrusted to the plaintiff and his two associates, and it was their own want of care, skill or attention that produced the injury. And when a person in the employment of another may sustain an injury by reason of such want of care, skill or attention, he has no legal grounds of action against the common employer. Brick v. Rochester, etc., R. R. Co., 98 N. Y., 211.

The injury sustained by the plaintiff was wholly attributable to the inattention or want of skill of himself and his immediate associates who were engaged in this work, and the general legal principle applicable to this class of cases, with these facts established against the plaintiff, will not permit him to maintain an action for damages against the defendants in whose employment each of these persons was engaged.

•The judgment dismissing the complaint at the circuit was right, and it should be affirmed.

Van Brunt, Oh. J., and Bartlett, J., concur.  