
    Edward Connolly, Respondent, v. Charles Peterson, Appellant.
    (Supreme Court, Appellate Term,
    April, 1909.)
    Master and servant — Master’s liability for injuries to servant: Tools, machinery and places to work — Platforms, scaffolds and supports — Sufficiency when used for purposes intended: Actions — Ques-
    tions for jury — Defects in tools, appliances or places to work — Use for purposes intended.
    While plaintiff, a laborer, was standing upon a platform which had no railing, about ten feet above ground, a bundle of flooring, which in the' course of his employment he was handing up to a man at the second story window, opened; and a strip of the flooring fell out and stunned him. In falling he grasped a support of the scaffold which extended from the ground to about three feet above the flooring. This support, a thin piece of wood, broke; and plaintiff fell to the street. In an action under section 18 of the Labor Law, forbidding an employer to furnish scaffolding which is “unsafe, unsuitable or improper,” it appeared that the supports were allowed to extend above the platform simply as a matter of convenience and not to give greater security to the workmen. Held, that the fact that the support broke when used by plaintiff for a purpose not contemplated by the parties was no evidence that the platform was unsafe; and, in the absence of evidence other than the accident itself that a scaffolding without railing or guard was improper or unsuitable for the work in which plaintiff was engaged, a judgment in his favor should be reversed and a new trial granted.
    It seems, that whether a scaffolding in any particular case is sufficient to comply with the requirements of the Labor Law is a question of fact.
    
      Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, fourth district, borough of Manhattan, rendered in favor of the plaintiff.
    George H. Abbott, for appellant.
    Jacob C. Brand, for respondent.
   Lehman, J.

The plaintiff was a laborer whose duty it was to stand on a platform some ten feet above the ground and hand up bundles of flooring to a man at the second story window. In the course of his employment, one bundle opened and a strip of flooring fell out and stunned him. He fell and, in falling, grasped a support of the scaffold which extended from the ground to about three feet above the flooring. This support was a thin piece of wood and broke when he grasped it, and he fell into.the street. There was no railing upon the platform. The action is brought under section 18 of the Labor Law forbidding the employer to furnish scaffolding which is “ unsafe, unsuitable or improper.” The evidence shows that these supports were of varying height above the floor of the platform, depending upon the length of the beams used for this purpose. It would appear that they had no other purpose than to support the platform and were allowed to extend above the floor simply because it was more convenient to build the platform in that way and not to give greater security to the workmen. The plaintiff, in this case, used the beam for a purpose not shown to have been contemplated by the parties; and the fact that it broke under such circumstances is not evidence that the platform was unsafe. The plaintiff, however, claims that the platform was unsafe and unsuitable by reason of there being no railing thereon or any guard for the laborers, unless these supports were intended as guards. It seems that it is a question of fact whether a scaffolding in any particular case is sufficient to comply with the requirements of the law; and the plaintiff has not, in this case, presented any evidence, other than the accident itself, to show that a scaffolding without railing or guard was improper or unsuitable for this work.

The judgment should, therefore, he reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

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