
    Thomas Healy, Appellant, v. Luke A. Burke, Respondent.
    (City Court of New York, General Term,
    June, 1901.)
    Negligence — Maintaining scaffold in safe condition — Contributory negligence.
    Under the Labor Law (L.,1897, ch. 415, § 18), an employer is not only bound to furnish his employee a safe scaffold, but he must maintain it in the condition which the statute requires shall be created in the first instance.
    
      Where a laborer using a wheelbarrow was thrown from a scaffold made of planks, with planks overlapping the joints, because, preparatory to removing the scaffold, an overlapping plank, which might have prevented the accident, had been removed by order of his foreman at a time when the laborer was below, the court held the laborer entitled to recover because the scaffold had not been left in a safe condition; and further held that the fact that he, when ordered by the foreman to go on the scaffold, failed to observe the absence of the overlapping plank, raised no question of law but only one of fact as tó his contributory negligence.
    Appeal from a judgment entered in favor of the defendant upon the dismissal of the plaintiff’s complaint, at the close of his case.
    Leventritt & Brennan (George M. Leventritt and Samuel P. Goldman, of counsel), for appellant.
    Blumenstiel & Hirsch (Morris J. Hirsch, of counsel), for respondent.
   O’Dwyer, J.

Upon the trial it appeared that the defendant was erecting a building at Attorney and Rivington streets, Hew York city; that the plaintiff was a day laborer, and was working for the defendant on the day of the accident under the immediate supervision, control and direction of one John Horgan, who was the foreman, also in the employ of the defendant; that on the day of the accident about 2 or 3 o’clock in the afternoon the foreman directed the plaintiff to remove some brick from a certain' scaffolding in said building. The scaffolding was constructed of boards over beams, the ends of the boards meeting; there was a lap or board across the planks that held the planks in place; these boards or planks were about thirteen or fourteen feet long, and, from the testimony of the witnesses in regard to them, it would appear that they were the usual planks about a foot wide .and about an inch thick. To reach the scaffold it was necessary to come down one runway and go up another. The plaintiff, pursuant to the direction of his foreman, had removed about thirteen or fourteen wheelbarrows of brick from the scaffold, and was' about to take another load. It seems that he went up the runway and passed along on the scaffold, and had reached a place over forty feet from the runway, when, with his wheelbarrow in front of him, he stooped to fill it up with brick, and the plank tipped with him and he went down.

Plaintiff gave, as his version of the reason why the plank tipped with him and he went down, the fact that the lap had been taken off from - the end of the plank on which he had to step. He further testified that the scaffold was all right at the time he went on it for his first thirteen or fourteen loads, but that it was not left so, that the foreman sent a man to take off the plank while plaintiff was away with a load of brick, and that he knew nothing at all about the plank (lap) being off, -that when he came back on his last trip he did not look to see whether the lap was in place or ñot, as he was in a hurry, that the foreman was over him and had told him to hurry up; he further said the lap was there before his last trip, that the lap was not nailed, that he did not think any of the laps were nailed, and he didn’t see anybody remove the lap from the plank on which he fell, nor was ho told that the lap was removed, and that he didn’t know the scaffolding was being taken down. It was also proven by the testimony of James McElroy that the scaffold was being taken down under the direction of Horgan, the foreman. Referring to this McElroy swore that “they were doing that and were told to rush the work.” Upon cross-examination this witness swore that “ the plank was passed up by Cuneo (another worker) before he took off all the bricks.” This witness saw the accident and described it as follows: “ Healy went up there to remove the brick. Q. And while he was in the. course of this trip — [interrupted] ? A. Charlie Cuneo (another workman) passed the plank up to the next floor. Then Healy went on the scaffold, put his wheelbarrow down and toppled over. I saw the plank tip up; he was stooping down.”

Section 18 of the Labor Law (Laws of 1897, chap. 415), provides: “A person employing or directing another to perform labor of any kind in the erection, repairing, altering, or painting of a house, building or structure, shall not furnish or erect, or' cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of the person so employed or engaged.”

The law thus declares that the defendant was bound to erect and furnish a safe, suitable and proper scaffolding for the use of this plaintiff, and when the law has so declared, it is hut reasonable to say that the intention of the law is that the duty thus imposed can only he performed by maintaining -the condition that the law required to he created. It thus follows that, not only was it the duty of the defendant to erect and furnish a safe scaffold, hut he was hound to maintain it in that condition during the time the plaintiff was required to work thereon pursuant to his orders, and his failure to do so would be negligence. The fact that the plaintiff did not look and observe that the lapped plank had been removed did not create a question of law, hut one of fact as to his contributory negligence, and that question was for the jury to determine.

The claim that the accident occurred through the negligence of a fellow-servant- is without force under the facts in.this case. We hold that defendant’s duty called upon him to provide a safe and suitable scaffold for the plaintiff to work upon, and to maintain the same in a safe and suitable condition.

The judgment appealed from should be reversed, and a new trial ordered, with costs to appellant, to abide the event.

Conlan, J., concurs.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.  