
    Bridget Sheridan, as Administratrix, etc., of Matthew Cooney, Deceased, Appellant, v. Interborough Rapid Transit Company, Respondent, and The Joyce Trucking Company.
    First Department,
    November 5, 1906.
    Negligence —injury to servant on scaffold suspended from elevated railway— failure of master to provide watchman—negligence for jury.
    The plaintiff's intestate, while working on a scaffold suspended from an elevated railway, was killed by reason of the pin holding the planks to said scaffold being struck by a truck passing beneath. The scaffold was only fourteen feet eight inches above the street and liable to be struck by passing vehicles. The driver of the truck testified that he was not warned of the presence of the scaffold. On appeal from a nonsuit,
    
      Seld, that it should have been left to the jury'to say whether the master was negligent in not furnishing a watchman to give notice of the presence of the scaffold; ■ -
    That, although the. burden was on the plaintiff to show that no watchman was employed, the uncontradicted evidence of the truckman with other corroborating evidence presented a question of fact for the jury.
    Appeal by the plaintiff, Bridget Sheridan, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant Interborough Rapid Transit Company, entered in the office of the clerk of the county of ¡New York on the 28tli day of February, 1906, upon the dismissal of the complaint as to said defendant by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 19th day of February, 1906, denying the plaintiff’s motion for a. new trial made upon the minutes.
    
      Charles Pope Caldwell, for the appellant.
    
      J. Osgood Nichols, for the respondents.
   Ingraham, J.:

Upon a former appeal from a judgment in favor of the plaintiff that judgment was reversed upon the ground that there was no negligence proved as against the defendant, the Interborough Rapid Transit Company (101 App. Div. 534). Upon a retrial the court, at the end of plaintiff’s case, dismissed the complaint, and from the judgment entered thereon the plaintiff appeals. A witness called for the plaintiff- described this platform upon which the plaintiff’s intestate was at work at the time of the accident, referring to a plan or drawing of the scaffold. This drawing is not annexed to the record, and it is somewhat difficult to understand the testimony in the absence of the drawing to which the witness referred. It was stated that the scaffold upon which the plaintiff’s intestate was at work was built upon two cross timbers bolted or nailed together; that these cross timbers were made of six by two-inch planks bolted together, and upon these were placed planks running parallel with the railroad track, with a hole in each end. A short bolt dropped through so that they could not work off; that there were usually a dozen planks upon the scaffold which could be shifted about according to the necessity of the work, and the men sat upon the planks and worked above their heads; that these scaffolds had been in use on the elevated railroad for a good many years before the accident, and was the kind of scaffolding always used for this kind of work. The plaintiff’s intestate, with other employees of the defendant, being at work up on such a scaffold at Sixth avenue and Thirty-ninth street, a truck drove down Sixth avenue under the elevated railroad structure. This truck was loaded with empty cable reels. When the truck arrived at Thirty-ninth street and Sixth avenue the driver testified that he heard somebody halloo as though something had .happened, and he stopped. He got off the truck and went back and found the plaintiff’s intestate on the sidewalk. The driver said that he did not notice this scaffold either before or after the accident; that he had no warning not to proceed, and that nobody waved their hands to him or signaled to him; that as he drove down the avenue he saw a scaffold hanging under the elevated railroad near Fortieth street, but that he did not look any more to see whether there were others; that he had often seen these scaffolds hanging under the elevated road, as it was a common thing for them to be there; that he did not éee any "watchman there On this day. One of the men upon this truck testified that he saw the wagon strike the scaffold; that a bolt was sticking down below the scaffold about six inches; that when the wagon hit the bolt a plank fell down, striking . against the front wheel; that he saw-the plank fall," but did not see any of the men on the scaffold fall.;. that it was one of the spools or reels that hit the bolt. It also appeared that these workmen were engaged in 'repairing the structure of the elevated railroad; that some of them' were working on the street and some upon the scaffold; that the height of" the cross girder of the elevated structure at this point was fourteen feet eight and a half inches above the surface of the street; that this girder crossed the street and supported the sleepers for the track.

Upon the former trial there was evidence that the railroad" company had employed a watchman to protect, this scaffold from the danger of collisions with vehicles in the street, and the- preponderance of evidence was that he was engage'd in the performance of his duty at the time of the accident. We held that under such circumstances that fact being undisputed or proved by the" preponderance of evidence, a verdict against the defendant upon the ground of negligence could not be sustained. ■ Upon this trial there was no evidence that; the defendant had employed a watchman, or had taken any means to avoid the danger of such an accident as actually, happened which resulted in the death of the plaintiff’s intestate, the only evidence' in this record being that the driver of the truck which collided with the. scaffold, causing the accident, heard no warning given, and saw no one in the street performing such a /duty. A question is, therefore, presented whether the ■ defendant was bound to protect 'its employees in this situation from the danger óf a collision with vehicles using the street. The duty' imposed upon the defendant is to provide a safe place, and proper appliances for its employees to .perform the work they are required to "do. Whether or not such a place .and such appliances are furnished by the. employer depends upon . the nature of the' work and "the danger to be'apprehended in doing it. Here the situation was apparent. These men were employed upon a scaffold ‘ suspended from the elevated railroad structure at- this particular locality but a short distance "above the tops of the street cars. The men were, working in such a situation' that it was impossible to do their work and keep a watch for approaching vehicles. It must have been apparent to any one superintending this work that there was danger that vehicles using the street would collide with these structures and it seems to me that a due regard for the life of their employees required that the defendant should take some means to avoid the danger of a collision between vehicles in the street and these scaffolds. It is settled that where a railroad employs men to work upon its track, where trains are constantly passing, there is a duty, of providing some warning to the men of the approach of trains, and this situation required a similar precaution to make the place furnished for their employees to work reasonably safe. From ‘tlie brief of the defendant it does not appear that this position is seriously disputed, but the defendant seems to base its right to sustain this dismissal of the complaint upon the ground that there was no evidence which tended to show that there was not a watchman present for the protection of its employees, but I think there is evidence to go the jury upon that question, and while I agree that the burden of proof was upon the plaintiff to show that there was no watchman employed, I think that when a wagon drives along the streets during the working hours,. with the men at work, without seeing a watchman or being warned in any way with the other corroborating evidence that there was no watchman in the street at the time, there is evidence that none was supplied by the defendant. Upon the former appeal we held that if the company did furnish a watchman to warn vehicles against interfering with the scaffold all reasonable precaution had been taken and there was nothing to r justify a finding of negligence, but there being evidence to justify a finding that no watchman was provided by the defendant it was error to dismiss the complaint.

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, Laughlin, Clarke and Houghton, JJ., concurred.

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