
    John Grady, Respondent, v. National Conduit and Cable Company, Appellant.
    Second Department,
    November 27, 1912.
    Master and servant — negligence — injury by fall of scaffold — assumption of risk — liability of master at common law — liability under section 18 of Labor Law — alteration of building, what constitutes — installation of sprinkler system — erroneous charge.
    In an action by an employee against his master to recover for injuries sustained while engaged in installing a sprinkler system in one of its buildings,. it appeared that while plaintiff was standing on a plank extending from a beam to a window sill, which.was a little lower than the beam, the plank slipped from the beam, throwing plaintiff to the ground to his serious injury. The plank had been placed in position by fellow-' workmen.
    
      
      Held, that at common law the failure of plaintiff’s fellow-servants under the conditions of this case, to construct a safe scaffold was a detail of the work, and for their negligence the master would not be liable; and plaintiff, having voluntarily undertaken to work upon the planking, with full knowledge of the situation and its dangers, would be deemed to have assumed the risk of injuries therefrom.
    But if the evidence discloses a violation of section 18 of the Labor Law requiring the master to maintain safe scaffolding, even although the plaintiff knew of the existence of such violation, and the dangers resulting therefrom, the defendant cannot assert by way of defense that plaintiff assumed this open and obvious risk.
    The installation of water pipes, constituting a sprinkler system for the extinguishment of fires, through the cupola of a building, extending the entire length thereof, without permanently attaching <the pipes, does not constitute an alteration of the building within the meaning of section 18 of the Labor Law;
    It is reversible error for the court to charge as a matter of law that the installation of such a system constitutes an alteration of the building.
    To constitute an alteration in the building the sprinkler system must be in some manner installed so as to become an integral part thereof, and change its structural quality.
    Hirschberg, J., dissented, in part.
    Appeal by the defendant, the National Conduit and Cable Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of March, 1912, upon the verdict 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.
    
      Frank Verner Johnson [Amos H. Stephens with him on the brief], for the appellant.
    
      Michael J. Tierney, for the respondent.
   Burr, J.:

On August 15, 1910, plaintiff, an employee of defendant, was injured while engaged in installing a sprinkler system in one of its buildings. The building was about one hundred and seventy or one hundred and eighty feet in length and one story in height, with a cupola upon the top running the entire ■length thereof, upon either side of which were windows for purposes of ventilation. Within this cupola was a beam described as the ridge pole ” of the building. The distance from this ridge pole to the floor was about twenty-seven or twenty-eight feet. Plaintiff describes the size of this beam as three by eight or three by ten. It was about six or seven inches higher than the sills of the windows and was distant nine or ten feet therefrom. The plan for the sprinkling system involved the erection of a main pipe or riser from the floor near the center of the building to a point near the roof of the cupola. Connected with this were lines _of pipe running on either side of the ridge pole through the entire length of the cupola so designed that in case of fire the water in these pipes might be released for the purpose of its extinguishment. As described by one of the witnesses: There were sprinkler heads screwed in and at 212 degrees of heat they would let go, and there was a pressure of water at all times on that pipe, and that amount of heat would make them let go and put the fire out.” There was some conflict of evidence as to the conditions which existed at the time of and. immediately preceding the accident. The jury having found a verdict for plaintiff, for the purposes of this discussion we accept his version thereof. There was a ladder outside of the building. Ascending upon this, plaintiff climbed through the window and stepped upon a beam about eighteen inches lower than the window sill, and walked across this to the center beam or ridge pole. On arriving at the place where he was to work he found a plank extending from the center beam out to the window sill. As this beam was higher than the sill, to use his own words, The board had a slant of 6 or 7 inches in that distance across.” According to his testimony, this plank had been placed there by some of his fellow-workmen, and he had no part in selecting the same or putting it in position. There is no evidence that the plank, which was ten feet long, ten inches wide and one and one-quarter or one and one-eighth inches thick, was not sufficiently strong to bear plaintiff’s weight. Plaintiff says that he noticed that the end of the plank projected two or three inches over the beam, and his contention is that it was not securely fastened at either end. It would seem that such must have been the case, for after plaintiff, standing upon it, had been engaged for fifteen or twenty minutes in screwing two pieces of pipe together, one end of the plank slipped or was pushed from the beam upon which it had rested, and he was thrown to the ground and seriously injured. Plaintiff admits that he knew that if it slipped and I fell down I would have an accident.” There is no dispute that there was an abundance of material at hand and at the disposal of plaintiff and his coemployees with which to construct a proper staging or scaffold had they been so disposed.

At common law upon this state of facts plaintiff must have failed. Failure of plaintiff’s coemployees, under the conditions here disclosed, to construct a safe scaffold, was a detail of the work, and for their negligence the master would not be liable; and plaintiff having voluntarily undertaken to work upon the planking, with full knowledge of the situation and its dangers, would he deemed to have assumed the risk of injuries therefrom. (Butler v. Townsend, 126 N. Y. 105; Knisley v. Pratt, 148 id. 312; McLaughlin v. Eidlitz, 50 App. Div. 518; Kimmer v. Weber, 151 N. Y. 417; Harvey v. McConchie, 77 App. Div. 361; affd., l77 N. Y. 569; Gombert v. McKay, 201 id. 21.) The learned trial court was asked to charge, and did charge, that the size of the plank, its position on the beam and window sill, and the distance to the floor, and all the risks and dangers of working under such conditions, were open, obvious and apparent to the plaintiff, and all such risks and dangers were assumed by him, and he cannot recover damages for injuries resulting therefrom.” If this is the correct rule of. law, to be consistent the trial court should have granted the motion for a nonsuit. But in seeking to overcome this objection to the affirmance of the judgment plaintiff invokes the provisions of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18), to the effect that A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure, shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” He contends that the effect of this statute, so far as the measure of a master’s duty is concerned, is to place upon him an absolute obligation, and one which cannot be delegated, not only to furnish but to maintain a safe, suitable and proper scaffold for his servants to work upon. (Stewart v. Ferguson, 164 N. Y. 653; Madden v. Hughes, 104 App. Div. 101; affd., 185 N. Y. 466; Warren v. Post & McCord, 128 App. Div. 572.)

Since the argument of this appeal, and while the case was under consideration by this court, our attention has been called to the case of Fitzwater v. Warren (206 N. Y. 355), as bearing upon the question of assumption of risk. In that case, where plaintiff was injured by an unguarded set screw in violation of the requirements of the statute, the rule is laid down by Chief Judge Cullen, writing for the majority of the court, that “public policy precludes an employee from assuming the risk created by a violation of the statute or waiving liability of the master for injuries caused thereby.” Knisley v. Pratt (supra) would seem to be to the contrary, and the chief judge in his opinion concedes this to be so, but declares that the doctrine of that case no longer remains in full force and authority. In Gombert v. McKay (supra), in an opinion written by Collin, J., in which all of the judges, including the chief judge, concurred, and where the injury resulted from the use of a scaffold claimed to be constructed contrary to the provisions of the statute, it was said: “Although it imposes upon the employers personal responsibility and a positive prohibition, it does not, in terms, impose absolute and irresistible liability from their default or disobedience; nor is the liability consequent upon the negligent violation of a duty created by a statute necessarily superior to the relevant common-law defenses thereto. * * * Under the statute in question the employer is left free to invoke the defense, of assumption of risk or contributory negligence on the part of the employee.” If these decisions may not be reconciled, we feel constrained to follow the later decision of the court, and to hold that if the evidence in this case discloses a violation of the statute, even though the plaintiff knew of the existence of such violation, and the dangers resulting therefrom, the' defendant is deprived of asserting by way of defense that he assumed this open and obvious risk.

It behooves us, therefore, to examine the evidence in this case in order to determine whether the provisions of the statute do apply, or, in other words, whether the work in which plaintiff was engaged was “ the erection, repairing, altering or painting of a house, building or structure.” The building-in which plaintiff was at work at the time of his injury was not a new one. It had apparently been erected some time before, and the work of installing the sprinkler system seems to have been undertaken and carried on from time to time by defendant through its own employees when they were not engaged in the ordinary duties of their employment in connection with defendant’s regular business. The work could hardly be said to be that of repair of the building, within the' accepted definitions of the word. Repair is “Restoration to a sound or good state after decay, waste, injury, or partial destruction.” (Century Diet., tit. “Repair;” Webster’s Internat. Dict., idem; Standard Diet., idem.) Again, repair is “Restoration after injury, dilapidation, or loss.” (Worcester’s Dict., idem.) It involves the idea of something pre-existing, the condition of which has been affected in one of the modes suggested. But this sprinkler system was a new construction, and was not in any sense a restoration of the building to a condition which at one time had existed, but which had been lost or impaired. Does the proof establish that the installation of this system was an alteration of the building itself, or was it merely the establishment of an appliance therein ? In Madden v. Hughes (104 App. Div. 103) it was said that alteration involves substantial change in structure. In Wingert v. Krakauer, decided in 1902 (76 App. Div. 34; 92 id. 223), it was said that alteration means “to change, modify, transform.” But it was there held that placing machinery in a room and attaching it firmly to the ceiling constitutes an alteration therein, within the meaning of the statute. In Schapp v. Bloomer (181 N. Y. 125) a judgment in favor of plaintiff was' reversed upon two grounds, first, that the staging upon which plaintiff stood was not a scaffold, and, second, that the use of such staging to facilitate the placing of fixtures was not a use for one Of the cases specified in the statute, to wit, the erection; repair, alteration or painting of a house, building or structure. In Williams v. First Nat. Bank (118 App. Div. 555; 121 id. 929; affd., 195 N. Y. 576), referring to a scaffold used for puting up shafting, the court said this was “ a use not covered by the language of the statute.” In McKeage v. Hanover Fire Insurance Co. (81 N. Y. 38), where defendant claimed title through the foreclosure of a mortgage on land,, it was held that gas fixtures screwed on pipes in the walls and mirrors attached thereto by hooks or supports, some of which were fastened with screws to the woodwork and others driven into the walls, and which were capable of being easily detached from their supports without interfering with or injuring the walls, were not appurtenances to the building. In Drew v. Mason (81 Ill. 498) the Supreme Court of that State, in construing a statute relating to mechanics’ liens for work and materials furnished in “building, altering, repairing or ornamenting” a house, held that furnishing materials and performing labor in placing a hghtning rod on a house was not within the terms thereof, and in O’Neil v. Manufacturers’ Automatic Sprinkler Co. (143 App. Div. 56), where it appeared that in the construction of a new building a sprinkler system was being installed which embraced a number of pipes attached to a metal frame that supported the roof of the dock, a scaffold furnished for the performance of that work was furnished in connection with the erection of a building. So far as appears from the evidence in this case, the sprinkling pipes upon which plaintiff was at work at the time of his injury were not attached to the building itself in any manner whatsoever, still less in a permanent one. In respondent’s brief the statement is made that these pipes ran along different'parts of the building, and were “ permanently attached to it.” We have carefully examined the evidence, and fail to find any justification for this statement, nor is respondent able to point out any except as it may be found in a single sentence in the testimony of defendant’s superintendent, to the effect that “Inputting up these pipes the whole roof was covered with pipe a certain distance apart. That is, in the ventilator and under the roof.” It is quite apparent that this statement has reference to the proximity of the pipes to each other rather than to their annexation to any part of the building. One thing may cover another without necessarily being attached to or forming a part of it. So far as the evidence discloses, this sprinkler system was no more a part of the building than a fountain in the center court of a building might be said to be a part thereof. Even if there had been some annexation to the walls or roof of the building .itself, whether such annexation constituted an alteration in the building might depend to some extent upon the character thereof. If a length of rubber hose had been attached to a bibcock in the wall of this building for the purpose of extinguishing fires, we think it could hardly be claimed that such hose so attached constituted' an alteration in the building. It cannot be, if the method of attachment is similar, that the fact that in one case the conduit is flexible and in the other rigid, results in different characterization. Without attempting an exhaustive definition, it would seem that to constitute an alteration in the building the sprinkler system must be in some manner installed so as to become an integral part thereof, and change its structural quality. It may be that even though the pipes could be shown to be in some manner attached to the building, it would become a question of fact for the jury rather than one of law for the court whether such annexation constituted an alteration in the structure itself. In this case the learned trial court charged as matter of law that the installation of these pipes in the manner here disclosed was within the meaning of the act an alteration of the building itself. We deem this to be fatal error. The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Woodward and Rich, JJ., concurred; Hirschberg, J., dissented on the sole ground that he regards the installing of a sprinkler system in a plant as an alteration within the meaning of the statute.

Judgment and order reversed and new trial granted, costs to abide the event.  