
    Pasquale Mullen, Respondent, v. Louis C. Frees Construction Company, Inc., Appellant.
    First Department,
    May 5, 1916.
    Master and servant —negligence— injury by fall of beam which, struck plank on which plaintiff stood — Employers’ Liability Act — pleading — failure to allege negligence of foreman — when evidence of such negligence not admissible—unauthorized amendment to conform to. proof — safe place to work.
    In an action under the Employers’ Liability Act, brought to recover for injuries caused by the fact that an iron beam while being lowered down a shaft fell and struck a plank upon which the plaintiff was standing and precipitated him to the cellar, it is error to allow evidence as to the negligence of defendant’s superintendent or foreman in directing the plaintiff to continue the work with knowledge that an improper system of lowering beams was used, when there was no charge in the complaint, or notice of claim, of any negligence on the part of a foreman, and in this respect it was merely alleged that the accident occurred by reason of a failure to employ a competent foreman.
    So, too, it was error to allow the plaintiff to amend the complaint after both sides had rested so as to allege the negligence of the foreman, such amendment merely aggravating the error in receiving the evidence.
    Pleadings cannot be amended to'conform to proof where there is an objection taken in due time to the sufficiency of the pleading, or to the admission of evidence necessary to justify a recovery upon the ground that it was inadmissible under the pleading.
    
      It seems, that the plaintiff’s remedy was a request for leave to withdraw a juror and to apply at Special Term for an amendment.
    In such action it was also error to submit to the jury the question of a safe place to work, where the plank upon which the plaintiff stood was safe and suitable, and the accident was caused by the falling of the beam.
    Appeal by the defendant, Louis 0. Frees Construction Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of May, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 1st day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Frederick Mellor, for the appellant.
    
      Moses Feltenstein, for the respondent.-
   Dowling, J.:

This action was brought under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352).

Plaintiff was in the employ of defendant -as a laborer, and on December 6, 1913, was working for it on a building then in course of construction at One Hundred and Fortieth street and • Third avenue, in the city of New York. He was engaged with four other men in lowering beams from the roof to the ground floor of the building, and at the time of the accident was stationed on a plank which stretched across the opening in the elevator shaft at the ground floor when one of the beams fell as it was being lowered and struck the plank on which plaintiff was standing, precipitating him to the cellar and inflicting the injuries for which he has recovered damages. There was evidence to the effect that the method used for securing the beams by the rope before they were lowered, which was by a “timber hitch” about six feet from the end of the beam, was not a safe or proper one, and that they should have been fastened by a “timber hitch” about the middle of the beam and a “ half-hitch ” at the end. There was a suggestion that the former method was followed because the rope used was too short for the latter. The defendant offered proof that the mode of fastening followed was a usual one.

Error was committed on the trial in allowing the plaintiff to introduce evidence, over the objection and exception of defendant, as to the alleged negligence of defendant’s superintendent or foreman “in the directing of an improper system or method of doing the work, and with knowledge thereof, directing the plaintiff to continue, after knowledge of an improper system being used,” and in amending the complaint by including such an allegation after both sides had rested, and when defendant had asked leave to amend its answer so as to be in a position to question the sufficiency of the notice given under the act. Until the time of the trial plaintiff had never given the slightest indication of his intention to claim or rely upon any negligence on the part of the defendant’s superintendent or foreman as a basis of liability. His complaint was based on the theory of defendant having furnished him an insecure and unsafe place to work, the failure to furnish him with sufficient protection against injury by reason of the falling or lowering of objects, failure to warn him of the danger therefrom, failure to employ competent fellow-servants, and failure to furnish the employees with proper means with which to carry on the work. The only allegation which appeared in the complaint in respect to superintendence was that the accident happened, among other causes, “by reason of its failure to employ competent foremen or superintendent and fellow servants or employees.” The plaintiff’s bill of particulars charged that the “ employees or superintendent or foreman in charge of the said work were incompetent ” by reason of facts alleged as to their conduct. The notice of claim, contained no statement of negligence upon the part of the superintendent or foreman save of failure to properly warn claimant of the imminent danger when the work was going on. Under the state of the pleadings, proof of negligence upon the part of defendant’s superintendent or foreman was improperly received and the error was not cured, but only aggravated, by the amendment of the complaint allowed after both sides had rested. The objection was taken as early as the opening to the jury by plaintiff’s counsel and was urged at every possible opportunity. The complaint in this action was not broad enough to cover proof of negligence upon the part of the superintendent or foreman (Bertolami v. United Engineering & Contracting Company, 125 App. Div. 584) and the pleadings could not be amended to conform to the proof where there was objection taken in due time to the sufficiency of the pleading or to the admission of the evidence necessary to justify a recovery upon the ground that it was inadmissible under the pleadings. (Audley v. Townsend, 126 App. Div. 431.) The only remedy for plaintiff’s embarrassment was to ask to withdraw a juror and to apply for the amendment at Special Term. Error was also committed in submitting to the jury the question of a safe place to work. The plaintiff was working on a building which was in process of construction. The place in which he was working and where he was standing was safe for the purpose for which it was constructed and intended to be used. The plank on which he stood seems to have been in all ways suited for the purpose to which it was devoted. There is no suggestion that it was not properly placed. The accident happened because of the falling of a beam from above; negligence was predicated on that fall, and that was the only default of defendant for which it could be held responsible. There was nothing in the record to justify the submission to the jury of the bare question of defendant’s duty to provide a safe place for plaintiff to work in, -unaccompanied by instructions of any kind as to what that duty consisted of, and inapplicable, as it was in any event to the facts in this case. (Simpson v. Foundation Co., 132 App. Div. 375; Shatrau v. Sullivan, 201 N. Y. 567.)

Many reversible errors were committed in the refusal to charge specific requests made hy defendant, but we deem it unnecessary to discuss them, as a new trial must he had.

The judgment and order appealed from will he reversed and a new trial ordered, with costs to appellant to abide the event.

Clarke, P. J., Laughlin, Page and Davis, JJ., concurred.

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