
    DITBERNER v. ROGERS.
    
      City Court of Brooklyn, General Term,
    
    November, 1883.
    Action fob Negligence.—Master and Servant; negligence; unsafe scaffold; sub-contractor’s employee:
    Defendant, a contractor to paint a church edifice, made a sub-contract for a portion of the work, and plaintiff, an employee of the subcontractor, was injured by the breaking of a plank in a lofty scaffold, which had been built by the church, and used by defendant in common with others employed on different parts of the general structure. The scaffold was securely built, but the unsafe plank was placed there by two workmen of defendant whom he had loaned to the sub-contractor, and whom the defendant paid, though they acted under the sub-contractor’s directions:—Held, that there was no question of defendant’s negligence to submit to the jury, and a nonsuit was proper.
    The two workmen, while acting under the sub-contractor’s directions, were his workmen as much as the plaintiff, and defendant was not chargeable with their neglect.
    Knowledge of the condition of the plank should have been brought home to the defendant in order to charge him with negligence; the mere fact of its use was no evidence of such neglect.
    The case of Devlin v. Smith, 11 Abb. N. C. 322; S. C., 89 N. Y. 470, distinguished.
    Hearing on exceptions to an order of nonsuit directed to be heard in the first instance,, at the general term. . '.
    
      Action by Charles Ditberner against Stephen Rogers, for injuries received by falling from a scaffold. The plank which broke was placed on the scaffold by workmen employed by defendant and paid by him, but who were at that time acting under the directions of a sub-contractor of defendant.
    The further facts appear in the opinion.
   McCue, Ch. J.

The defendant, who is á painter, entered into a contract for the painting and frescoing of a church which was being built. The building committee of the church made contracts for the different kinds of work necessary in the erection of the structure, and among others made the contract with the defendant.

Upon the trial the defendant testified: “ The church were to furnish me with the scaffold,. they did so: furnished the entire scaffold ; I had nothing at all to do with it; I did not furnish or lay, or order to be laid, any planks in the whole scaffold.”

The scaffold was erected in September, 1882, and was used by the framers, iron men, lathers, plasterers, carpenters, and finally by the defendant, who commenced work, viz., the “plain painting,” on November 14, 1882.

About December 1, 1882, the defendant employed one Mulholland, under a sub-contract to do the fresco-work, and Mulholland employed the plaintiff to aid with another in the fresco work. While so engaged on December 16, the plaintiff fell from the scaffold and was injured. Mulholland obtained from the defendant the services of two workmen, who had been engaged under the direction of the defendant in doing the plain work of the painting. Mulholland testified : “I am a fresco-painter and am in the habit of taking sub-contracts, which I did in the case of this church ; as to the ornamental part of the frescoing, Mr. Rogers (the defendant), had no control or direction of my men. It was not a portion of my contract that he should furnish me two men ; but I requested the loan of these men in connection with the contract. He had to furnish me with a scaffold, and he furnished me with two men who had some knowledge of scaffolding, or I would not have taken them. I knew them to be competent. Mr. Rogers never to my knowledge gave any orders or directions for the placing or replacing or removing or setting of the planks.”

It also appears that these two men, George and Henry, so furnished by the defendant, were also paid by him, but they were upder the direction of Mulholland, and it was their business under his directions to move the planks from one section to another of the scaffold for the fresco-painters to do their work. “ The fresco-painter needs more scaffold than the plasterer does, and to make the scaffold good and. secure and comfortable, planks had to be taken away from the other sections and moved around there.”.

At the close of the plaintiffs case a motion for a non-suit was granted, the, exceptions to be heard in the first'instance, at the general term.

■ The facts thus referred to are sufficient to present the questions upon which it is claimed that the defendant is liable for the accident, and that the plaintiff had the right to go to the jury on the questions of negligence.

The plaintiff claims, first, that the defendant was bound to provide a safe scaffold for Mulholland’s men, and that he did not; second, that the broken plank was placed there by the defendant’s employees, and that it was negligence to supply the scaffold in that condition for Mulholland.

We must bear in mind that the gist of the action is negligence. “ An employer does not undertake absolutely with his employees, for the sufficiency, or safety of the implements and facilities furnished for their work, but only for the exercise of reasonable care in that respect; and when injury to an employee results from a defect in the implements furnished, knowledge of the defect must be brought home to the employer or p”oof given that he omitted the exercise of proper care to discover it.” Such is the rule laid down in the case of Devlin v. Smith, 11 Abb. N. C 322; S. C., 89 N. Y. 470.

Upon the undisputed facts of the case and under this rule, it seems to us that the case under examination was properly disposed of. The scaffold in use was not constructed by the defendant. It was constructed by the building committee of the church, and was used in common by all the workmen employed on the different parts of the general structure.

But besides, the scaffold proper (leaving out the planks) was sufficiently and securely built. It had been used continuously from its erection with entire safety and there had been no suggestion even that the scaffold was unsafe, or that its condition caused the accident. Undoubtedly it was the breaking of a loose plank which precipitated the plaintiff.

- If it had appeared that the scaffold proper had been insufficiently secured or fastened, as in the case of Devlin v. Smith, there might have been a question to submit to the jury as to the negligence of the defendant in furnishing a defective implement or structure ; but such is not the fact, and upon this branch of the case, we think the ruling of the court at trial term was clear and correct.

The other question then remains, was the use of the broken plank any evidence of the neglect of the defendant? We think not. There is no evidence going to show that the condition of the plank was observed by any of the workmen, and, within the rule above stated, knowledge of the defect should have been brought ho.me to the defendant. There is no evidence going to show that this particular plank was furnished by the defendant.

If it should be said that the two workmen, who were furnished by the defendant to the sub-contractor, laid and changed from time to time as it became necessary all the planks, including this particular one which caused the accident, to make a flooring for the fresco-painters to work, it cannot b'e claimed that they 1 were in the defendant’s employ. The evidence is clear that while their wages were advanced by the defendant, according "to the terms of the sub-contract between the defendant and Mulholland, nevertheless, on this day and while doing this work, George and Henry, the two workmen referred to, were under the direction of Mulholland, and were his workmen as’ much as was the plaintiff himself. If they, or either of them, then, were careless or negligent, the result cannot be charged to the defendant.

It may be regarded as an instance of carelessness on the part of a fellow workman, but does not involve the liability of the defendant as an employer.

Without, therefore, discussing this branch of the case any further, we are of the opinion that, on all the evidence in the case, there is no qause of action, and the nonsuit below should be affirmed, and judgment entered in favor of the defendant against the plaintiff, with costs.

Reynolds, J.

I concur in the judgment for defendant. Plaintiff was not in his employ, nor was there any privity of contract between them. Neither is the defendant liable upon the doctrine of Devlin v. Smith. He did not build the scaffold, nor furnish any of the materials used in it, or upon it. The church furnished the scaffold to' him (and to the other mechanics) to do his work. A part of this work' he sub-contracted to Mulholland, the plaintiff’s employer, and it was tacitly taken for granted between them, that Mulholland should use the same scaffold which had been furnished to defendant. He says: “ He had to furnish me with a scaffold,” and this is explained on his cross-examination, as follows : “ You say Rogers had to supply you with a scaffold?” Ans. “Some one had to supply me; I never supply scaffolds.” It does not appear from this, or any other testimony in the case, that defendant agreed with Mulholland to furnish him a scaffold. It was simply assumed that he was to use the one that was there. This does not make the defendant responsible for its soundness.

I also agree with the chief judge, that defendant is not responsible for the acts of the two men whom he had lent to Mulholland to work for him ; but, whether he was or not, I see no evidence that either of them was guilty of negligence in the matter.

Judgment affirmed. 
      
       A motion for re-argument was made, relying on the case of Heaven v. Pender (English Court of Appeal), 28 Alb. L. J. 143, but was denied without further opinion.
     