
    John J. Conley, Plaintiff, v. The Lackawanna Iron and Steel Company, Defendant.
    
      Negligence — a scaffold constructed outside of a building, between the building and a portable upright boiler, to enable a workman to remove a pipe connecting the boiler with, the building •—the boiler is not a “structure” within section 18 of the Labor Law—when the master is not responsible to his servant injured thereon—risk of the employment.
    
    Section 18 of the Labor Law (Laws of 1897, chap. 415) provides as follows: “ 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 a person so employed or engaged.”
    
      Held, that a portable upright boiler standing on the ground outside a building and temporarily connected by a pipe running through the wall of the building with a large boiler permanently located, within the building, was not a “structure” within the meaning of such. section, and that a scaffold, consisting of planks, one end of which was supported by cleats nailed upon the outside wall of the building and the other end by horses placed some twelve feet from the building, which scaffold was erected to facilitate the work of removing the pipe connecting the two boilers and of removing the upright boiler to another place, was not a scaffold such as is described in this section of the Labor Law, as the upright boiler constituted no part of the building and the disconnection and removal thereof was neither an alteration of the boiler nor pf the building;
    That the construction of the scaffold was a detail of the master’s business, and that, as the master had provided competent foremen and workmen and sufficient material for the construction of the scaffold, he was not liable for personal injuries sustained by a servant in consequence of the tipping of the planks composing the scaffold because of the action of the servant in stepping on that portion of the planks which extended beyond the horses, as the negligence, if any, in the construction of the scaffold was that of a fellow-servant for which the master was not liable.
    
      Qvare, whether, as the manner in which the scaffold had been constructed was open and apparent, the injured servant did not assume the risk of the employment.
    Spring, J., dissented.
    Motion by the plaintiff, John J. Conley, for a new trial upon a case containing exceptions, ordered to he heard at the Appellate Division iq. the first instance upon the verdict of a jury in favor of the defendant rendered by direction of the court after a trial at the Erie Trial Term.
    
      Hamilton Ward, Jr., for the plaintiff.
    
      Louis L. Babcock, for the defendant.
   Stover, J.:

Plaintiff was in the employ of defendant, and at the time of the accident was engaged in disconnecting steam pipes connecting boilers upon the premises of the defendant. Defendant at the time was engaged in installing a plant for the general purposes of its business. Inside of the building which had been erected as a permanent structure, was a large boiler intended for use in the operation of the plant. Outside of the building there had been placed, some few days before the accident, an upright boiler which stood upon its own iron base, which rested upon the ground. This upright or smaller boiler stood in an angle formed by the main building and a temporary building which had been constructed by the defendant, but the boiler was entirely unprotected, having no. roof or. shelter of any kind over it, and being connected to the boiler inside of the main building by a pipe which ran through the wall of the building ; and otherwise than that there was no connection whatever to the building or other portions of the structure belonging to the plant. It would appear from the evidence that this upright boiler had been used for p few days for washing out ” the large boiler inside the mill, and that it had been determined to move the upright boiler down into.a swamp in the vicinity- of the building, in order to pump water from the ditches which were at that time giving them some trouble. In order to remove the boiler it was necessary tó disconnect the pipe which ran from the upright boiler to the large boiler. The fittings were several feet above the ground and, in order to reach them conveniently, cleats were nailed upon the building, the ends of planks placed upon the cleats, and at a distance of about twelve feet from the building horses were placed, which were of the same height as the cleats and the planks near the Other end rested upon' the horses, and ends projecting some distance beyond the horses.

Plaintiff went upon this platform, so constructed, and, after disconnecting the flange which formed the union of the two pipes, stepped upon the end of the planks which projected over the horse, the planks tipped with the weight of the plaintiff upon the end, and he was thrown to the ground, sustaining the injuries which are made the basis of this action.

The injury was caused solely by the tipping of the planks because of the plaintiff placing his weight at a point too _ far from the support of the horses.

The question presented is a narrow one, and involves the construction of section 18 of the Labor Law, which is as follows : 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 protoction to the life and limb of a person so employed or engaged.”

It is conceded by the defendant that if this was a scaffold such as is described in the statute, a question was raised for the jury, but if it was not, then it is claimed the rule laid down in Butler v. Townsend (126 N. Y. 105) applies, and that the negligence, if any, was that of fellow-servants, for which the defendant was not liable.

It was not the intention of the statute to render all persons using scaffolding for any purpose liable under its provisions, but its operation is limited to scaffolds which are used in the erection, repairing, altering or painting of a house, building or structure.

Now, the people engaged in the erection, altering and repairing of houses are house builders, carpenters, men whose occupation, generally, compels them to use scaffolding in the performance of this kind of work. It is the erection, repairing or altering of a house. This would cover, generally, all kinds of work done by the artisans engaged in house building or repairing. We do not discuss the other class of people, painters, because evidently that can have no bearing upon the question under, discussion, except to permit the argument that it was. not intended that persons who may be incidentally employed about a building should be embraced within the provisions of the law.

A “ structure ” is defined to be “a building of any kind, but chiefly a building of some size or of magnificence, an edifice.”

As to the boiler itself, it cannot be claimed that it was a building or a house, and the question as to whether it was in any way connected with the building will be discussed further on.

It perhaps is not necessary to argue at any great length that a boiler is not a structure within the meaning of the statute. While the word “ structure ” may cover a great variety of form and construction,, yet, when used in connection with the words “house” and “ building,” it is evidently intended to simply describe a variety of building, and it would seem that it could not, by any possibility, be interpreted to mean a boiler which is portable, and may be readily moved from place to place as convenience in its use may require. Such a boiler rather becomes an appliance in the business for which it is used, and on account of its portable character can hardly be said to become so attached to premises as to constitute a part of the building or structure meant by the statute and the recognized character of which is its permanency and immobility. But it is said that inasmuch as the boiler was in use in connection with the plant, it, therefore, became in such use a part of the building — a quasi-fixture—and that, therefore, its removal was an alteration of the building, and the scaffolding used in its removal would be a statutory scaffold. The case of Wingert v. Krakauer (76 App. Div. 34) is cited as authority for this proposition ; but an examination of that case will show a material distinction. In that case the defendants were piano. manufacturers, and at the time of the accident were engaged in removing their factory from one building to another some distance away. In order to do that it was necessary to. change the character of the building which .they were about to occupy, and-in doing so they placed hangers and shafting, and, in fact, altered the entire building from a plain building or loft to a manufacturing establishment, and it was held that there was such an alteration of the building as brought it within the provisions of the statute.

But in the case under consideration there is no alteration of the building or structure in any way ; it is simply the removal of an appliance which had been put upon the ground, apparently temporarily, without in any way interfering with the structure itself¿ or in any way changing or altering its condition, The building was complete and in proper condition for operation for the purposes for which it was intended after the upright hoiler had been removed. Its character was not changed in any particular. The alteration, if any, was that of the outside boiler itself, but, as stated above, this was not within the statute. The location of the boiler being of a temporary character, its connection was made accordingly, and of necessity its removal would require some labor in disconnecting it from the outside pipe; yet this was neither an alteration of the boiler nor of the building; it was simply a detail in the use of the appliance for the purpose for which it was intended.

We think the better view is that the boiler was, in no sense, a portion of the building, but that it was an appliance in use upon the premises at such times and places as convenience might require, and that its removal from point to point had not the character either of erection, repairing or altering of a building or structure within the statute; and that the scaffolding which was used for the purpose of disconnecting the boiler was not a statutory scaffolding.

The evidence shows that competent men had charge of the construction, that sufficient material was furnished by the master, and it is not strongly contended that there was negligence on the part of the master in this regard.

We think the evidence shows that the master had provided competent foremen and workmen and sufficient material for the construction of the platform, and that its construction was such a detail of the general management of the business as might properly be left to the judgment and discretion of a foreman or other employee in charge, and that the negligence, if any, in the construction of the platform was that of a fellow servant, for which the master was not liable.

A further question in the case, as to the assumption of risk, has been discussed. It is quite evident that the construction of the platform was open and apparent to any one, and, laid as these planks were, the position of the horses, and the liability of the planks to tip, must have been open and apparent to any one who occupied the platform; and much force is to be given to the contention that the plaintiff assumed the risk of the employment. We think that the platform was not a scaffold within fee meaning of the statute, and tho,t under the ruling laid down in. Butler v. Townsend (supra) the plaintiff is not entitled to recover.

Plaintiff’s exceptions overruled, motion for a new trial denied, judgment in favor of defendant directed upon the verdict, with costs to the defendant.

McLennan, P. J., and Williams, J., concurred; Hiscock, J., concurred in result only ; Spring, J., dissented.

Plaintiff’s exceptions overruled, motion for new trial denied and judgment ordered for the defendant, with costs. 
      
      Laws of 1897, chap. 415, —Rep,
     