
    Elsa Wittgren, as Administratrix, etc., of Nies Bernhard Wittgren, Deceased, Respondent, v. Wells Brothers Company of New York, Appellant.
    Second Department,
    December 30, 1910.
    Master and servant — negligence — injury to bricklayer —■ fall of portion of wall — assumption of risk.
    Action to recover for the death of one employed as á bricklayer in the construction of a building. The- decedent was directed by the master’s foreman to place an iron .plate upon the top of a wall under.process of construction for the purpose of furnishing anchorage for steelwork. On the top of the brick wall there was a band of stonework projecting beyond the wall line for . " a space one-half the width of the stone, it being intended subsequently to back up the stonework with briqk and to anchor it. The decedent, without specific direction to do so, and acting on his own responsibility, stood upon the wall to place the iron plate and was, precipitated to the street, when a part of the unanchored, stonework toppled over. There was a scaffold behind the wall, hut the evidence -as to whether it was high enough, tó be used by the plaintiff in placing the iron plate upon the wall was conflicting.
    
      held, that as the decedent of his own will without direction undertook to perform the work under conditions which he must have known .to be dangerous;. he assumed the risk as a matter of law.
    Híérschberg-, P. J., dissented.
    "• Appeal by the defendant, the-Wells Brothers Company of Rew, York, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of Rich- • mond on tbe 18th day of April, 1-910, upon the vei’dic't of a jury for $10,000, and also from an order, entered in said clerk’s office on- the same day denying the defendant’s motion for a new trial made upon the minutes. . •
    
      Theodore JEL. lord \Lyman A. Spalding with him on the brief],, for the appellant.
    ' Sydney A. Syme, for the respondent.
   Woodward, J.:

Plaintiff’s intestate was employed as a'bricklayer in the construction of an eight-story building on Hudson street, borough of Manhattan, on the 24th day of .December, 1909, and was directed by his. foreman tp place an iron plate about eight by twelve inches in size and half an inch thick, and weighing twelve, to sixteen pounds, upon the top of one of the" walls, for the purpose of furnishing an anchorage, for further "steelwork. The walls, at the time, had reached the eighth' story, and on top of the brick walls, at each, story, was an ornamental band of stpne. This stone was set on top of the brickwork, projecting over the line of "the wall, and was to be backed up with brick and anchored. .This band of stone had been placed on the eighth story, but had not been "anchored or backed up by the brickwork, so that it projected out .over vacant space about' o.ne-half the" width of the stone: . Plaintiff’s intestate went to the point indicated to place the plátéj climbed on top of the wall and was engaged in placing the plate when the stone toppled over and he was • precipitated to the street below and instantly ."killed. The- action was brought under the. Employers’ Liability Act (Laws of 1902," chap. .600; Labor Law [Consol. Laws, chap. 31; Laws of" 1909, .chap. 36], § 200 et .seg.), and the negligence alleged was the. failure of the defendant to provide a reasonably safe place tó " work, or proper “ ways, works, • or. machinery ” for the "performance of the work. There was some evidence in the case that there was a scaffolding inside of the building and .adjacent to the wall, where the." decedent was called upon to work, which had been Use.d by the bricklayers in constructing the front wall,.on which the stone had been-placed,, and the, case appears to have been sent to-the jury to determine whether this scaffolding was high" enough for the plaintiff’s intestate to stand", upon and, perform the work, it. being practically admitted that if it was high enough, it was his duty to have used such platform,- while it seems to have been assumed that if the decedent could not reach his work from this platform, it was necessary for him to climb upon the wall, and that the defendant was negligent for failing to provide a reasonably safe place in which to work.

. There was, we believe, a fair conflict Of evidence on the question of the height of the scaffolding; some of the witnesses claimed that the wall was ten feet and four inches in height from the beams on the seventh story to the top of the wall pf the eighth; that" the horses on which the platform was constructed were five feet high, and that these were placed upon two-inch floor plank, with two-inch planks constituting the platform, so that the top of the wall was ju§t five feet above the top of the scaffolding, while the decedent was a man five feet eight inches in height.' On the other hand there were witnesses who testified that there was no scaffolding at the point, while others testified that it was there, and that it was six to seven feet above the top of the scaffolding to the top of the wall,, and it was claimed that the work could not be properly done unless it was within the view of the workman. If the case depended upon this question, it seems clear that the testimony Was properly submitted to the jury, and there would not appear to be any justification for reversing the- judgment. The more serious question, raised by the motion to set aside the verdict and to grant a new trial on the grounds specified in section 999 of the Code of Civil Procedure, it seems to us, is whether this case comes within the Employers’ Liability Act. The notice provided by the statute was introduced in evidence, over the objection and exception "of the defendant, and if the action is- merely one at common law, the plaintiff is not entitled to the benefits of the act.

The defendant objected to the introduction of the notice, “ not on the' ground that it was not received, but on the ground that the notice does not state a cause of action within either subdivision 1 or subdivision 2 of section 1 of the Employers’ Liability Act, and on the further ground that it does not correctly state the cause of the accident.” The notice in question, after alleging the death of the decedent by reason of a fall from the eighth story of the building being constructed by the defendant, avers that “ the death of said deceased was caused, as‘ said administratrix is informed and.verily .believes, by reason of the carelessness and negligence, of your comjiany,. its agents and .superintendents, in failing to furnish said deceased -a safe arid proper place in which to perform the work . which he was ordered and directed ■ to .perform by your ccuripany,' its agents and superintendents, in that yon carelessly and '-negligently -failed and- omitted" to furnish to deceased any scaffold or other suitable or safe, appliance upon which to stand while performing the work as-directed,.and in carelessly and negligently directing deceased- to stand upon,/a- place which was unsafe and insecure in-that., the material • comprising the wall upon which deceased was directed-by, your company, and its superintendents and agents, to stand, while doing, the Work which he was directed to do, was ins.e-cure -and improperly fastened, and was loóse and unstable, with the result that when deceased placed his weight upon same, said material comprising said wall, gave way and fell to the ground, precipitating deceased with it, and that you'- further carelessly and negligently failed and omitted to properly inspect and prepare said wall, .or place. where deceased wás ordered to work, so as tb ascertain as to the-seenrity thereof, before..ordering and directing deceased to work thereon-;”

Substantially-this-same allegation of. negligence is contained in the plaintiff’s complaint, and Obviously - this' is merely the assertion of a common-law right of' action ¡for a failure, to-provide a reason- '. ably safe place in which to .work, and in failing to supply reasonably safe tool's, machinery'and appliances for such work.-' There is no allegation' of any defect in the' condition of the ’ ways, works or machinery connected with-or used in the - business-of the employer which arose from- or had not been discovered or remedied owing to ■ the negligence of'the employer,-or of a.ny- person in the service of. the employer, and.intrusted by..him with--.the duty of seeing that the ' ways, works' or machinery were in proper condition. (Labor Law, § 200, subd. 1.) The wall which was -in course of construction was riot a way, work or machine connected with'or used in- the business of the employer, nor is there any defect in its condition suggested. The wáll was being constructed after the-architect’s plans; it was. being constructed, we may assume, ini .the regular way, and its condition at the time of-the accident was- open - and‘ obvious, and was due entirely to the fact that the work had only reached this stage of eonstrúctiori. The intestate was' at work upon this very job; he was one of the bricklayers who was called upon to put in the bricks back of the stone and to anchor' the same, and the law is well established that a dangerous condition, growing out of the very work in hand as it progresses, does not impose an obligation upon the master to guard against it in behalf of those who are .present and contribute in the coursé of their employment to the condition. So far as the scaffold is concerned, the allegation was not that its condition ' was in any way defective, but that.the defendant “carelessly and negligently failed and omitted to furnish to deceased any scaffold or other suitable or safe appliance upon which to stand while performing the work as directed.” This, of course, is merely the neglect of a common-law duty. It is practically conceded in the record that the defendant or its superintendent did not direct the plaintiff’s intestate to stand upon the wall; the negligence, if any,' consisted in directing him to do a particular thing, and then not supplying him with proper appliances for doing the work, in this way forcing him, in a measure, to make use of another way. It' seems clear, therefore, that there was no cause of action pleaded or proven under the Employers’ Liability Act, at least so far as the 1st subdivision is concerned.'

As we have already pointed out, it is conceded that the defendant did not, through its superintendent, direct the intestate to stand upon the wall; the evidence is merely that “ There was a man there -who gave us orders about what to do. That man’s name was James ■Grady. "x" * * He.gave general orders to bricklayers according to what work was to doany work that was to do, lié give the orders. He did not do any bricklaying himself,” There is- no allegation in the complaint that this man Grady was “ intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence,” nor does the evidence disclose any-such relation. He appears to have been a foreman over, the brickwork, while the defendants were the general contractors. But assuming that Grady was a superintendent within the 'meaning of the statute, the evidence is that he first spoke to ode Bobinson ; that he said: “ Bobinson, you go over there and set some plates,” and that almost immediately he countermanded this" and‘said: “ He ver mind, you stay where. you are and you go, Wittgren; you stay 'where you are.” This is- in substance all of' the direction which Grady is alleged to have niade to the decedent. There- is not a particle of evidence that. Grady directed' in what' manner thé dece . dent should perform the work. All that appears is that in a geheral way Grady, the • foreman, directed the decedent to go to another part of the building to put up some- plates, and the. only;' negligence alleged .in connectibn with this, is that the defendant did hot furnish a scaffold or other , proper appliance. It does not appear that Grady gave him any assurances-or any-orders relating to thé úse of the wall, and.clearly there could- be no negligence in . merely directing a man 'to go from one part óf a building, to another ■ for the purpose of doing some work-iii connection with his regular employment. . There being no' negligence of any one shown to be ■ a superintendent within the meaning, of the statute, and' the only question of negligence submitted to the jury being whether the ' scaffold which was furnished-and its adequacy for'.fhe. purpose of. doing the work, it follows that it was error -to permit the plaintiff .to introduce the' employer’s liability notice in evidence, the same having been challenged upon this exact ground. The case was not brought within the provisions of the Employers’ Liability' Act, either by the pleadings. or the evidence; it was not submitted to the jury upon any liability growing out of such act, but upon the common-law proposition that the-defendant had failed , to furnish a 'reasonably-safe place and reasonably safe tools and-appliances, and ' it'was error to permit the-introduction of. the notice served under the Employers’ Liability Act, not bnly because it has a tendency to: prejudice the. defendant,'but because, béing.in the case, the rules of law are different. At common law the employee is held to have assumed those risks necessarily incident to the employment; all such risks as are open and obvious, and in this cáse the proximate cause of the injury was not. the absence of a scaffold, but the. act of the intestate in getting upon a, Wall which was obviously dangerous,-and which was not designed for ’the purpose to which he was putting it at the time. ' The intestate was a mechanic, á bricklayer-, who was familiar with the construction; he knew as well as the defendant conld possibly know, that-a trimming stone,-projecting, practically one-half its width over the line of the wall,'and neither ' anchored nor sustained by the brickwork.back of it, which had. not been put in, was a dangerous place to stand upon at the: height, of eight stories. He was not commanded to take that position; he was merely directed generally to go and place the iron plates, and this" order or direction cannot by any fair process of reasoning be construed into anything more than a direction to go and do the work in a reasonably safe manner. If the scaffold which stood by the wall was not high enough, this fact was entirely obvious to the decedent, and' if the defendant had not furnished proper appliances to reach the work, it was his place to call the attention of the foreman to the fact, and" to wait until he was supplied with proper appliances, and not to take a risk which no one had asked him to take, and. which was not required by any reasonable construction of the orders which had been given. But the evidence in this case shows that the defendant had furnished plenty of planks for the construction of scaffolds, and if the scaffold which stood there was not high enough within two feet, more or less — the extreme difference suggested by the testimony — it was a very simple matter and well within the scope of the decedent’s employment, to make use of these planks in building up- the platform. The order given was quite as consistent with such action on the part of the decedent as to climb upon this half-completed wall, and under the facts as they, appeared in evidence at the close of the testimony, the complaint should have been dismissed.

We apprehend that it is not actionable negligence on the part oí a master to fail, to provide tools and appliances necessary to perform any given work; the negligence arises when the master provides tools and appliances which, when used, are not reasonably safe. The master in the case now before us. was not bound to furnish a scaffold; it was merely bound, if it did furnish a scaffold, to furnish. one which should be safe. The complaint alleges that it did not furnish a scaffold at all, and the proof, we may assume," shows that it did not furnish a "platform which the plaintiff’s intestate made use of, so that the scaffold was not in and of itself the "cause of the accident. It is only by assuming that the decedent was bound to-perform the work allotted to him regardless of the fact that he had not been given a proper scaffold, that there is any’foundation whatever for the theory on which this case went to the jury, and, as we have pointed out, thé order did not contemplate doing anything out of the reasonable and ordinary course of procedure in the construetioif of this building. The defendant had furnished materials out of which the scaffold already,on the Boor might.have been made to afford an entirely safe appliance, and to say that the decedent could close his eyes to this situation and take upon, himself the extraordinai;y risks which were so entirely obvious' to him, and charge' the master for the results', is to say that the master' owes the duty, not of ordinary insurance, but .of insuring against the recklessness of the employee. The plaintiff’s intestate, if' lie, found'himself without proper appliances, was under no obligations 'to perform the'work ; -. he-could, in the full .discharge of his duties as an employee, call the attention of his foreman to" the lack of. appliances, and refrain from'' working Until the appliances were furnisliéd,:or, as. we have .sug- . gested, he might very -properly have taken the planks, provided, for that purpose and built Up the scaffold to a proper .height. This would have been reasonable and safe, and the expense .of the time necessary to do.tlie work would have been a-proper charge upon the master. When he went beyond this and, without directions or assurances on the part of any one'to overcome his own free will in the premises, undertook to- perform the'work under conditions which he must have known menaced'his lííé, lie- assumed, the risks as a matter of law, and the plaintiff had no right of recovery.

The'judgment and order appealed, from should; he reversed and a new trial granted, costs to abide the event. ' - ' . .

Jenks, J., concurred; Carr,. J., concurred in result;'Thomas, j., voted, for reversal upon the ground that-the decedent, without order, .direction or constraint to do' so, went on: the wall without. previous' notification to his master that no scaffolding, or sufficient scaffolding, had been provided; that -he volunteered to- do- the work in his own way and' so lost his life.; Hirsóhberg, P. J., dissented. .

. Judgment'and order '• reversed and new trial granted, costs to !abide the event. - '  