
    Elbert F. Holsapple, Appellant, v. International Paper Company, Respondent.
    Third Department,
    September 27, 1912.
    Master and servant — negligence — injury by defective scaffold — Labor Law — erroneous charge.
    A plank which an employee was directed to place upon brick piers surrounding a circular steel tube for the purpose of painting it is a scaffold within the meaning of the Labor Law.
    In an action to recover for injuries suffered by the employee when the plank broke owing to the presence of a knot, it is error to charge, in substance, that the master is not liable for furnishing an unsafe scaffold, unless the jury find that the location was obviously dangerous, and also error to refuse to charge that it was the duty of the master to furnish a • safe scaffold.
    A verdict of no cause of action will be set aside because of said errors, although the jury may have found the plaintiff guilty of contributory negligence in not inspecting the plank before using it, for it is uncertain upon which issue the verdict was based.
    Smith, P. J., and Houghton, J., dissented.
    Appeal by the plaintiff, Elbert F. Holsapple, from a judgment óf the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 16th day of November, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of October, 1911, denying.the plaintiff’s motion for a new trial made upon the minutes.
    
      Butler & Kilmer [W. P. Butter of counsel], for the appellant.
    
      Rockwood, McKnight & McKelvey [L. B. McKelvey of counsel], for the respondent.
   Lyon, J:

The plaintiff, by occupation a painter, and as such an employee of the defendant at its mill in the town of Corinth, Saratoga county, for two years, was injured in October, 1910, while engaged in painting a circular steel tube or penstock, which passed through the basement of defendant’s mill, and was used to convey water to the wheels which furnished power to operate the mill. The tube was ten feet in diameter, and rested in brick piers about ten feet apart, the sides of which extended around the lower portion of the tube, terminating in flat surfaces about fifteen or twenty inches square, about four and one-half feet from the floor.

Upon the morning of the day of the occurrence complained of, the plaintiff, with other painters and workmen, was engaged in scraping the rust from the steel tube preparatory to painting it, when a foreman of the defendant directed plaintiff to discontinue that work, saying to him, “ You take your bucket and go to painting here,” pointing out a portion of the east end of the tube, which was comparatively well lighted through windows in the wall. Plaintiff thereupon got his bucket, and said to the foreman, “You will have to have a scaffold there over these two or three bents,” and the foreman, pointing to a plank which extended from the wall to the top of the first pier, said to the plaintiff: “You can take that plank and put it on these piers. ” The foreman then left. There was no other plank within view, but there was a pile of lumber on the premises in which were plank of various lengths, as well as a pile of special plank used for staging, kept in the lumber shed near the planing mill. The plaintiff testified that he looked at the plank pointed out by the foreman but did not look it over, and took it and placing one end Upon the first pier and the other end upon the second pier stood upon it and painted the. portion of the tube between the two piers. The plaintiff then moved the plank along so that one end rested upon the second pier and the other end upon the third pier and was walking out to paint the portion of the pipe between those piers when the plank broke and the plaintiff fell to the basement bottom, which was of cement and covered to the depth of from twelve to fifteen inches by water and wet, beaten pulp, in which were broken brick and piéces of concrete. An examination of the plank after the accident disclosed a knot at the point of breakage, which plaintiff testifies he did not see, which was not less than four or five inches long and about two inches wide, passing through the plank but not showing as distinctly on one side as on the other. As a result of the fall plaintiff sustained an oblique fracture of both bones of the lower left leg, just above the ankle joint, disabling him for several months and resulting in a shortening of the leg and permanent restriction of motion oí the árdele.

Preceding the commencement of the action plaintiff served upon defendant a notice, of injury which was excluded by the court as insufficient to constitute, the notice required by the Employers’ Liability Act (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 201, as amd. by Laws of 1910, .chap. 352). (Logerto v. Central Building Co., 198 N. Y. 390; Lewis v. Gehlen, 136 App. Div. 855.)

The complaint contained two causes of action, one under the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18) and the other under the common law. The defendant offered no evidence. The jury rendered a verdict of no cause of action, upon which the judgment appealed from was entered.

There were no exceptions taken by the plaintiff to the admission or rejection of evidence which require consideration but the plaintiff directs our. attention to exceptions taken to the charge and to refusals to charge, as constituting reversible error. The court submitted two questions to the jury: First, was this scaffold obviously dangerous to an employee in the case of a fall at this place and under these conditions, and, second, was the plaintiff guilty of contributory negligence ?

Regarding the first proposition the court charged the jury:

' ‘A person employing another to perform labor in painting a structure shall not furnish scaffolding which is unsafe, unsuitable or improper. * * * That rule applies only to scaffolding where its use is obviously dangerous to life and limb of the employee working thereon in case of a fall. * * * The first question is, was this scaffolding obviously dangerous to an employee in the case of a fall at this place and under these conditions ? * * * If the condition was obviously dangerous for a fall, then it was the duty of the master to furnish a safe scaffold, and if it was not safe the master is hable. Was it obviously dangerous ? * * * That question is left, to you under your oaths. * * * The burden of proof is upon the plaintiff to satisfy you by a fair preponderance of proof that that is so.” Plaintiff excepted to that part of the charge in which the court said that the law only applied to scaffolds obviously dangerous to employees working upon them. Plaintiff requested the court to charge that it was the duty of the defendant to furnish a safe scaffold, for the plaintiff to work upon when painting, which was refused and to which refusal the plaintiff excepted. The court thus in effect instructed the jury that the defendant was not liable for furnishing an unsafe scaffold with which to paint a structure unless the jury should find that the location was obviously dangerous. The ruling was doubtless based upon the decision in Schapp v. Bloomer (181 N. Y. 125). But in that case it was held that the staging was not a scaffold within the contemplation of section 18 of the Labor Law. In the case at bar, however, the staging was a scaffold and the plaintiff, being engaged in painting' a structure, was within the express protection of that statute, and the exceptions of the plaintiff to the portion of the charge above referred to, as well as to the refusal to charge, were well taken. (Caddy v. Interborough Rapid Transit Co., 195 N. Y. 415; Gombert v. McKay, 201 id. 27.)

While the jury may have found that the. plaintiff was guilty of contributory negligence in not having inspected the plank before putting it to use,, yet it is uncertain upon, which of the two questions submitted to them they based their verdict.

The judgment and order appealed from must, therefore, "be reversed, with costs to the appellant to abide the event.

All concurred, except Smith, P. J., and Houghton, J., dissenting.

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