Carl C. Berthelson, Appellant, v. John C. Gabler, Respondent

Carl C. Berthelson, Appellant, v. John C. Gabler, Respondent. Second Department, January 26, 1906. Negligence -— injury by fall of scaffold — Employers’ Liability Act — liability pf master for servant exercising superintendence — continuing duty to keep structure safe — freedom from contributory negligence. When the evidence shows that the scaffold which fell and injured the plaintiff was • originally constructed by the plaintiff and his fellow-servants in a safe manner, hut became unsafe by reason of the removal of a supporting pier under the direction of a person in the service of the defendant exercising superintendence within the meaning of the Employers’ Liability Act, a recovery by the plaintiff is not barred on the theory that the negligence is that .of a fellow-servant. Though the- scaffold was originally safe, it was still the duty of the defendant to maintain it in such condition. The plaintiff is not guilty of negligence as a matter of law,-although he heard an order given to take down the supporting pier, as he is entitled to assume that - defendant will discharge his continuing duty to keep the scaffold safe, unless the omission to do so were obvious and actually, known to the plaintiff. Appeal by the plaintiff, Carl G. Berthelson, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 29tli day of November, 1904, setting aside a verdict in favor of. the plaintiff as contrary to law and against the weight of-evidence and granting a new trial. Bruce R. Duncan, for the appellant. Jacob Gordon, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : ■ The plaintiff was injured by the fall of a scaffold upon which he was at work for the defendant. The scaffold was actually constructed by1 the plaintiff and his fellow-workmen, all of whom were in the defendant’s service.- The evidence leaves no doubt' that, as originally constructed, the scaffold was safe for the use of the persons employed upon it. The structure was rendered unsafe by the subsequent removal, in part or in whole, of a brick pier- forming a portion of the building under repair. This brick pier gave some support to a joist which formed a part of the scaffoldand the removal of the pier, according to the testimony adduced in behalf of the plaintiff and the fair inferences to be drawn therefrom, so weakened the scaffold as to cause it to fall. The pier was removed at the instance and by the direction of a person in the service of the employer- intrusted with and exercising superintendence over the work within the meaning of subdivision 2 of' section 1 of the Employers’ Liability Act (Laws of 1902, chap. 600). Hence the plaintiff is not barred from maintaining the action on the ground that his injuries were the result of negligence on the part of a fellow-servant. Because of the fact that the scaffold was actually put up by the plaintiff and his fellow-carpenters, the learned trial judge was of the opinion that it was not furnished by the defendant within the meaning of the Labor Law (Laws of 1897, chap. 415, § 18). In reaching this conclusion we think he adopted too narrow a view of the testimony given by the defendant’s superintendent, which indicates that he gave directions as to the manner of its construction. The proof, as we look at it, tends to show that the defendant, in the first instance, discharged his absolute duty to furnish a safe scaffold. The obligation,: however,- ivas a continuing duty, and the principal question in ■the case was whether that duty was fulfilled during the entire period in which the scaffold was used. (Walters v. Fuller Co., 74 App. Div. 388, 393.) This was, a question of;fact which the learned tidal justice properly left to the jury. There was evidence sufficient to. warrant their finding of negligence in this respect in the proof that the superintendent was present at fhe work aft§r the scaffold was completed, and that he personally directed the removal of the old front of the building, in doing which the center pier, which partly supported the scaffold, had to be removed. ■ / The questjon of contributory negligence was- also properly submitted to the jury, (See Employers’ Liability Act [Laws of 190.2,. chap. 600], § 3.) It did not follow'that the plaintiff was guilty of contributory negligence as matter of law, because he .had heard' an order given by' a foreman-, to a fellow-workman to take down the pier. According .to his testimony he was away from the work for several hours and did. nót notice that the pier had b.een removed when he returned to the scaffold, or until after he wa's hurt. Even if he had observed that the. pier had been taken down, he was ' entitled to asjsume. that the defendant had dischaiged his continuing duty to keep the scaffold safe, unless tire defendant’s omission to do so was -obvious and patent to the senses or actually known to, him. In view of the provisions of the Labor Law and of the Employers’ Liability Act, we are of opinion that the plaintiff made out a case entitling him to go to the j.ury, We are unable to agree with the learned trial, justice that the verdict was against the weight of evidence, nor can we find any legal error which will sustain the ' order for a new trial. That order should, therefore, be reversed, and the verdict should be reinstated.. Present — Jenks, Hooker, Rich and Miller, JJ. Order setting aside verdict and granting -new trial reversed, with costs, and verdict reinstated, with costs. , , .