Sherwood M. Cooke. Respondent, v. Martin L. Maxwell, Appellant

Sherwood M. Cooke. Respondent, v. Martin L. Maxwell, Appellant. Second Department, October 6, 1916. Master and servant — negligence — Labor Law, section 18 — scaffold lacking safety rail—fall from scaffold suspended less than twenty feet from ground. Although section 18 of the Labor Law requiring safety rails to be placed upon scaffolds relates to scaffolds which are hung more than twenty feet from the ground, a recovery may be had for a failure of a master to comply with the statute although the employee fell from the unguarded scaffold when it was less than twenty feet from the ground, if, in fact, it was suspended from a building nearly seventy-five feet in height, and during the work had been raised and used over twenty feet from the ground. Appeal by the defendant, Martin L. Maxwell, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of November, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial upon the minutes. Plaintiff had worked for defendant as a -painter on the outside wall of a five-story structure, about seventy-five feet high, being one of the buildings of the Sea View Hospital at New Dorp, Staten Island. On January 20, 1914, a scaffold about twenty or twenty-five feet in length was swung from the top of the building by blocks and tackle so that plaintiff and his coworker could lower themselves along the north wall of the building as they worked downward, sandpapering iron work and scraping off spots of concrete, gradually dropping the scaffold until it hung at a level of between twelve and fifteen feet above the ground. Plaintiff then fell off the scaffold, sustaining severe injuries. This scaffold had no safety rail. The complaint averred this absence of a safety rail as required by the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18, as amd. by Laws of 1911, chap. 693). Upon the trial the court refused to instruct the jury to the effect that defendant was not required to maintain any guard rail if at the time of the accident the scaffold was less than twenty feet from the ground, to which ruling defendant’s counsel duly excepted. There were left to the jury the issues of defendant’s negligence and as to plaintiff’s contributory negligence. Plaintiff had a verdict of $3,000, which the. court declined to set aside. This appeal is from the judgment, also from the order denying a new trial. James F. Donnelly {Floyd K. Diefendorf with him ón the brief], for the appellant. Ashley & Scott [.Andrew Foulds, Jr., and William F. Ashley, Jr., of counsel], for the respondent. [MAJORITY — Putnam, J.:] Putnam, J.: The risk to painters and others employed on the outside walls of buildings caused it to be made a misdemeanor knowingly or negligently to furnish and erect “such unsuitable or improper scaffolding-, hoists, stays, ladders, or other mechanical contrivances as will not give proper protection to the life and limb of any person so employed or engaged.” (Laws of 1885, chap. 314; Penal Code, § 447a, added by Laws of 1893, chap. 692, as amd. by Laws of 1897, chap 416; now Penal Law, § 1276.) An amendment was added requiring a safety rail “if any such scaffolding or staging swung or suspended from an overhead support or supports shall be more than twenty feet from the ground or floor.” (Laws of 1891, chap. 214.) In the Labor Law of 1897 this read: “ Scaffolding or staging swung or suspended from an overhead support, more than twenty feet from the ground or floor, shall have a safety rail of wood, properly bolted, secured and braced,” etc. (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], § 18.) This was retained in the revision of 1909. (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18.) In 1911 the duty was enlarged to cover stationary scaffolds, so that the clause with the new insertions read: “Scaffolding or staging swung or suspended from an overhead support, or erected with stationary supports, more than twenty feet from the ground or floor, except scaffolding wholly within the interior of a building and which covers • the entire floor space of any room therein, shall have a safety rail of suitable material, properly bolted, secured and braced,” etc. (Laws of 1911, chap. 693.) Appellant contends that, although during the progress of this work this scaffold had been raised over twenty feet from the ground, defendant was not liable for the absence of a safety rail, if plaintiff’s fall was less than twenty feet; that it is the fall and the scaffold’s height at that moment that fixes the- duty to provide such á guard rail. Had this scaffold, hanging from an anchorage to this high cornice, been always maintained less than twenty feet from the ground, another question would be presented. But a swinging scaffold suspended at various levels, rising from the ground up to nearly seventy feet, must be within the compass of this statute. The object of a safety rail is to enable the workman to keep his balance Bo that when absorbed in his work he will not fall through inattention, or by the force of the wind. The courts by construction should not narrow the scope of such a needed protection. The 1st subdivision of section 7 of the English Workmen’s Compensation Act of 1897 (60 & 61 Vict. chap. 37) declares that it shall apply to employment “on, in or about any building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished.” It was argued that compensation should only go to workmen exposed to the risk of falling thirty feet, but the English decisions have applied the thirty feet to the height of the structure, not to that of the scaffold. (Labatt Mast. & Serv. [2d ed.] 5513.) Even without a special guard rail enactment, it has been held that a scaffold swinging eighteen feet from the ground unprovided with a safety rail is an unsafe place. (Kirby Lumber Co. v. Hamilton, 171 S. W. Rep. 546.) It would frustrate the legislative intent to hold here that where the scaffold has been lowered during the progress of the work from a dangerous height an employer escapes all liability for such necessary protection the moment that scaffold passed below twenty feet from the ground. The other exceptions taken in the course of the trial, including that to the charge, do not present error. I advise to affirm the judgment and order, with costs. Present—Jenks P. J., Care, Stapleton, Rich and Putnam, JJ. Judgment and order unanimously affirmed, with costs;