
    Marie Dick, as Administratrix, etc., of James Dick, Deceased, Appellant, v. Steel and Masonry Contracting Company, Respondent.
    First Department,
    December 6, 1912.
    Master and servant — negligence — fall of structural steel worker from freshly painted structure — safe place in which to work — erroneous nonsuit—failure to furnish planks for runway — assumption of risk — Employers’ Liability Act — when burden of proving contributory negligence is upon the master.
    Action to recover for the death of a structural steel worker who, while walking along a chord connecting two vertical columns, slipped and fell. From the evidence it appeared that the only way in which the decedent could pass from column to column in the performance of his work was along the chord; that the chord had been recently painted and was slippery; that no planking or runway over which the decedent could pass had been furnished by the master. The foreman had been warned of said unsafe condition and had been requested by employees to furnish planks, but had refused to do so.
    
      Held, that a nonsuit at the close of plaintiff’s case was error in that the evidence raised a question as to whether the master had provided a safe place in which to work;
    That it was error to exclude expert testimony offered by the plaintiff to show that it was customary under the circumstances to provide planking in order to furnish a safe place in which to work;
    That, as the erection of structural steel is a dangerous occupation, the master should adopt all reasonable precautions to minimize the risk to employees and that, under the circumstances, the jury would be justified in finding the master negligent in this respect;
    That it was error to exclude evidence of the slippery condition of the steel work, as it bore upon the master’s failure to fulfill his duty to his servant;
    That the question of the servant’s assumption of risk was for the jury and that, as the case arose under the Employers’ Liability Act, the decedent’s contributory negligence was a defense to be pleaded and proved by the master.
    Appeal by the plaintiff, Marie Dick, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of December, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.
    
      
      Francis X. McCollum, for the appellant.
    
      M. L. Malevinsky, for the respondent.
   Scott, J.:

Appeal from judgment entered upon a dismissal of the complaint at Trial Term.

The action is for damages for the death of plaintiff’s decedent, who died in consequence of a fall from a steel structure which he was employed in erecting.

The deceased, who was an experienced workman in the erecting of steel buildings, was employed by defendants, who were constructing a steel and concrete grand stand at a baseball park in the city of New York. At the time of the accident deceased was at work On the lower chord or member of an iron truss, which formed a part of what is described as a panel of the grand stand; This panel was constructed as follows: On the north and south ends of the front stood perpendicular iron columns about forty feet apart. The ends. of the upper and lower chords of a truss were attached to these two columns, the chords running horizontally between them at a distance of twelve or fourteen feet from each other. Along the entire length and on each side of the lower chord, which was about eight or ten inches high, was a horizontal flange or angle about five inches in width. Two gusset plates of solid iron about three and one-half feet wide were connected perpendicularly to the upper and lower chords of the truss, the centers of the gusset plates being about twelve feet distant from each other and about fifteen feet distant from the north and south columns, respectively. Crosspieces ran diagonally from the bottom of the gusset plates to the upper chord, meeting in the center of the spaces between the two gusset plates and between the gusset plates and the two columns, respectively. The lower chord of the truss was connected with the rear of the panel by four chords or struts which ran horizontally from the east or front of the panel to the west or rear of it, from each column and -each gusset plate, respectively*. The two center struts which connected with the center of the gusset plates were about twelve feet apart, and the distances between the struts that connected with the gusset plates and those that connected with the north and south columns, respectively, were about fifteen feet. At the time of the accident deceased, as a part of his work, was assisting in the operation of moving a traveling derrick, which was on top of the truss, from one panel to another, and was proceeding along the lower chord from the south to the north column where he had to be and where he was to unfasten a turnbuckle. While crossing from the south toward the north column he was carrying a bolt which he was to use in unfastening the turnbuckle and which he had just used in a similar operation on the south column. He had proceeded along the lower chord as far- as the north end of the north gusset plate. While he was turning around the gusset plate at that point and was holding on with one hand and after he had stepped over the chord with his left foot and rested it on the flange on the other side and was about to raise his right foot to walk to the north end of the panel he slipped and fell.

It was testified to that the only way in which the deceased could pass from the south to the north column in. order to perform the particular piece of work to which he had been assigned was along the chord, as he attempted to do. It was also in evidence that the chord and the other steel work had been freshly or recently painted and was, in consequence, slippery and greasy—so much so that the paint came off upon the gloves of the workmen engaged in handling the steel. There was.no plank or other runway by which deceased and other workmen could pass from one column to the other, and no planks were provided out of which the men could themselves construct such runways. ■ The defendant’s foreman had been warned before the accident that it was unsafe to pass to and fro along the steel structure, and had been asked by some of the workmen to furnish planks or boards with which a runway or place to walk could be constructed, but he had refused to furnish them, saying that there were none, and directed the men to get along without them.

In determining the correctness of the nonsuit the plaintiff is entitled to the most favorable inferences deducible from the evidence. We, therefore, assume, for the purpose of this appeal, that the paint upon the steel was slippery and greasy as testified to by the plaintiff’s witnesses; that this condition must have been apparent to the foreman; that this condition rendered it dangerous to walk upon the chord; that this danger had been pointed out to the foreman before the accident and he had been requested to furnish means to construct a safe runway or walk and had refused,- and had directed the men to pass to and fro on the steel.

The plaintiff offered to show by witnesses of large experience in steel erection that it was customary in doing work of that character to provide planking in order to furnish, a safe place for the men to work upon. This was objected to and excluded, not upon the ground that the questions were improperly framed, but apparently upon' the ground that any such custom if it existed would not be applicable to the conditions existing when deceased fell. The force of the objection is not entirely clear, for it is not apparent how it could be ascertained whether or not the custom applied unless it were permitted to be shown that such a custom existed and under What circumstances it obtained. In our opinion this evidence should have been received. Without it, however, we think that there was sufficient to raise a question for the jury as to whether or not the defendant had done its full duty in providing for deceased a safe place to work. It is a matter of .common knowledge that the erection of modem steel structures is, at the best, a dangerous occupation, but this fact does not justify an employer in refusing to adopt all reasonable precautions to minimize the danger. On the contrary, it should serve as an inducement to employers to endeavor, so far as possible, to lessen the risks of the work. Whether or not the employer fulfilled his complete duty in the case depends upon the conditions which existed at the time. Under some circumstances it might be reasonably safe to permit and direct the workmen to proceed from one part of the work to another by means of the steel chords and beams. Under other circumstances it might be very unsafe. In view of the slippery and greasy condition of the steel, and the warning given to the foreman before the accident that it was unsafe to use the chord as a' passageway, a jury would have been justified in finding that the defendant failed in its duty to furnish deceased a safe place in which to do his work. There was also evidence excluded as to the slippery condition of the steel work. This we think is error, because that was one of the conditions which bore upon the employer’s failure to fulfill his duty to his employee. The question as to whether or not deceased assumed the risk of using the chord was primarily a question for the jury, and since the accident happened after the passage of chapter 352 of the Laws of 1910, the question of decedent’s contributory negligence, if there be any such question in the case, was a defense to he pleaded and proved by the defendant. For these reasons the judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.  