
    Mamie Stevens, as Administratrix, etc., of Grant Stevens, Deceased, Appellant, v. Stanton Construction Company, Respondent.
    First Department,
    November 8, 1912.
    Master and servant — negligence — death of hoisting engineer by collapse of derrick — evidence —case within section 18 of Labor Law — erroneous dismissal of complaint — application of section 18 of Labor LaW.
    Where in an action to .recover for the death óf a hoisting engineer, killed by the collapse of a derrick used in the construction of a sewer, the evidence produced by the plaintiff fairly established that the fall of the derrick was due to the loosening of the clamps upon a spliced guy rope, and that such splicing had not been inspected for more than twenty-four horns, and there was no suggestion of any other cause for the collapse the case was brought within the provisions of section 18 of'the Labor Law, and the dismissal of the complaint was erroneous.
    Where appliances of the kind enumerated in section 18 of the Labor Law are required for the proper performance of work, they must be safe for the protection of those working upon or around them, whether the work to be done is above, on, or below the ground.
    Appeal by the plaintiff, Mamie Stevens, 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 15th 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, and also from an order entered in said clerk’s office on the 22d day of November, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      A. Mitchell Leslie, for the appellant.
    
      John Vernou Bouvier, Jr., for the respondent.
   Dowling, J.:

The defendant on April 18, 1911, was engaged in the performance of a contract for the construction of sewers at One Hundred and Seventy-third street and Boone avenue, in the borough of the Bronx, ..city of New York, and as part of the equipment used upon said work maintained a “stiff leg” derrick, supported by a wooden leg and by three steel guy cables about an inch in diameter, running from the top of the mast to “deadmen” or anchorages in the ground. One of these guys was composed of two cables, joined together by passing one of them through a loop in the other, this loop being lined with a “thimble” to prevent grinding. The free end of the cable thus passed through is then clamped to its upper portion by two steel bolts, about nine and fifteen inches respectively above the thimble. The splicing had been in position seven or eight weeks. The derrick thus constructed stood partly on the highway. Grant Stevens was in defendant’s employ as a hoisting engineer upon the work referred to, and among his duties was the raising or lowering of the boom of the derrick in obedience to signals.. While thus engaged, and at about eleven-thirty A. M. on the day in question, the derrick suddenly collapsed and fell upon him, causing his instant death.

Plaintiff produced proof upon the trial from which it appeared with reasonable certainty • that the collapse of the derrick was due to the loosening of the clamps or bolts upon the spliced cable, thus freeing the two parts thereof and causing the fall of the entire derrick in the opposite direction and upon Stevens. It also appeared that no other part of the derrick had broken or given way. It was shown that the clamps were examined and tested every morning by an employee of defendant, as there was danger that they might be tampered with and loosened, whereupon the derrick would fall; but such examination was not made upon the morning in question and it had been in use from eight a. m. to the happening of the accident without any examination since the morning of the preceding day.

Under these conditions the plaintiff was not obliged to rest upon the doctrine of res ipsa loquitur to justify a submission of the case to the jury. On the contrary, she had produced evidence from which it fairly appeared that the fall of the derrick was due to the loosening of the clamps upon the spliced guy rppe, and that such splicing had not been tested of inspected for more than twenty-four hours.

This proof brought the case within the provisions of section 18 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), which forbids a person employing another to perform labor of any kind “in the erection, repairing, altering or painting of a house, building or structure,” from furnishing scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper. We think it would be a very narrow and forced construction of this provision to limit its application to such works as are above ground and to deny its extension to subterranean operations. While the opening of a trench would not in itself come within the scope of the section, in the case at bar the construction of a sewer involved much more than that. A structure is defined by Bouvier as including “that which is built or constructed.” “ In' the widest sense, any production or piece of work artificially built up, or composed of parts joined together in some definite manner.” (Century Dictionary.) It has been applied to poles ‘ connected by wires for the transmission of electricity (Forbes v. Willamette Falls Electric Co., 19 Ore. 61); to a mine or pit (Helm v. Chapman, 66 Cal. 291); to a railroad track (Lee v. Town of Barkhampsted, 46 Conn. 213); to a vessel (Chaffee v. Union Dry Dock Co., 68 App. Div. 578); to an oil well with its derrick and other appliances (Haskell v. Gallagher, 20 Ind. App. 224). As was said in Caddy v. Interborough Rapid Transit Co. (125 App. Div. 681; affd., 195 N. Y. 415): “I do not think the Legislature had in mind any particular kind of structure when it passed said statute. The evident purpose of the statute was to insure better protection to workingmen whose work requires them to use scaffolds, hoists, stays, ladders or other like mechanical contrivances, under such circumstances as would imperil life or limb if the contrivance used were unsafe or insecure, and the word structure ’ was intended to include all structures which, like unto a house or building, require the use of scaffolds, hoists, stays or ladders in their construction, alteration or repair. ” So that it would seem clear that whether the work to be done is above, on or below the ground, where appliances of the kind enumerated are required for the proper doing of the work, they must be safe for the protection of those working upon or around them.

When, therefore, plaintiff had shown that defendant furnished an unsafe derrick, evidenced by its collapse due to the giving way of the spliced guy rope, and without a suggestion of any other cause for the collapse, and with no proof of any outside force acting upon it, she had sustained the burden of proof imposed upon her, and was entitled to have the defendant put to its proof. The dismissal of the complaint herein was erroneous, and the judgment and order appealed from must, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event.

Ingraham, P. J., Laoghlin, Scott and Miller, JJ., concurred.

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