Louise Tiedjen, as Administratrix, etc., of Paul Tiedjen, Deceased, Appellant, v. National Elevator Company, Respondent

Louise Tiedjen, as Administratrix, etc., of Paul Tiedjen, Deceased, Appellant, v. National Elevator Company, Respondent. First Department, December 30, 1910. Master and servant — negligence — Labor Law —duty to furnish safe . scaffold. By sections 18 and 19 of the Labor Law an absolute duty, which cannot be delegated, is imposed upon the master to furnish a safe scaffold. Where in an action to recover for the death of plaintiff’s intestate it appears that he was working on a scaffold drilling holes on thq inside of an elevator well; that the scaffold was a swinging one and was held against the wall by a .brace ' reaching to the opposite side of the well; that plaintiff’s intestate and his helper were both precipitated from the scaffold while at work; and that after the accident, of which there were no eye witnesses, the scaffold was.seen . swinging from the wall with the brace hanging down and blood was found on a brace four feet under the loose end of the scaffold, the evidence warrants a finding that the scaffold was improperly braced and secured, and a dismissal of the complaint is error. Ingraham, P. J., and Miller, J., dissented. . Appeal by the plaintiff, Louise Tiedjen, 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 28th day of March, 1910, 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 30th day of March, 1910, denying the plaintiff’s motion for a new trial made upon the minutes. Thomas J. O’Neill [Leonard F. Fish of ■ counsel], for the appellant. Frank V. Johnson, for the respondent. „ [MAJORITY — Clarke, J.:] Clarke, J.: This is an appeal from a judgment entered On the dismissal of the complaint .at the close of the plaintiff’s case. Upon the’ former appeal (130 App. Div. 504) this court reversed a judgment entered upon a verdict for the plaintiff. Mr. Justice Houghton wrote a dissenting opinion in which I concurred. The facts were stated in that opinion, so that it is not now necessary to restate them. For the reasons stated in that former opinion, upon the further fact that the judgment here under consideration was upon a dismissal of the complaint, and that, in my opinion, such a state of facts was presented by the evidence as required submission to a jury and precluded the court from acting thereon as matter of law, I think this judgment should be reversed. Warren v. Post & McCord (128 App. Div. 572), in which the majority of this court held that under the provisions of sections 18. and 19 of the Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], as amd. by Laws of 1899, chap. 192; now Consol. Laws, chap. 31 ; Laws of 1909, chap. 36) the duty to furnish a safe scaffold put. lipón the master .was an absolute duty which could not be delegated, and the fact that the servant selected the materials and erected, the structure did not bar a recovery, has been unanimously affirmed by the Court of Appeals (198 N. Y. 624). Although there was no eye-witness to the accident, immediately thereafter the scaffold was seen swinging away from the wall, with the piece of furring which had been used as a brace hanging down, and upon the iron braces supporting the elevator track, four feet under the far end of the scaffold, was a large blood stain. In my opinion enough was shown to have warranted the jury to have found as a fact that the decedent was upon the scaffold in the performance- of the master’s work, and that-his fall therefrom was due to the fact that the scaffold had been imperfectly braced and- secured, and hence that there was a violation by the master of the obligation put upon him by the law. - ", The dismissal of the complaint was, therefore, error, and the judgment appealed, from should be reversed and a new trial ordered, with costs to the appellant to abide the event. Scott and Dowling, JJ., concurred; Ingraham, P. J., and Miller, J., dissented on the opinion on former appeal (130 App. Div. 504). Judgment and order reversed and new trial ordered, with costs to appellant to abide event.