Catherina Haggblad, as Administratrix, etc., of John Haggblad, Deceased, Appellant, v. The Brooklyn Heights Railroad Company, Respondent

Catherina Haggblad, as Administratrix, etc., of John Haggblad, Deceased, Appellant, v. The Brooklyn Heights Railroad Company, Respondent. Second Department, March 8, 1907. Kegligence — injury by fall of hoist-1—res ipsa loquitur—Labor Law construed. Section 18 of the Labor Law, regulating-scaffolding, hoists, stays, etc,, and prdhibiting the üse of such appliances if not so constructed as to give proper protection to persons employed, makes the master liable for the use of such appliances even though they he negligently put up by fellow-workmen of the servant injured. - ' ..... A plaintiff suing to recover for an injury to a decedent from such a cause need not plead the statute in order to make the same available. When a structure used for the purpose of hoisting beams to ah elevated railway falls and an employee is killed thereby, the case is brought within the doctrine of res ipsa loquitur, and the question of the defendant’s negligence should be submitted to the jury, although the decedent helped his fellow-workmen to fasten the hoist in place. Appeal by the plaintiff, Catherina Haggblad, as administratrix, ■ etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 18th day of June, 1906, upon, the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the Kings County Trial Term. * The defendant was building a passenger platform ón one of the stations of its elevated railroad. Long ties were being placed across • the railroad track on the longitudinal girders of the railroad structure, on which the ordinary railroad ties rest at each end, so that they should extend out four feet from the longitudinal girder on the outer side of. the trade, and along such projecting ends of the ties a flooring was to be laid for a platform. There are heavy timbers called guard rails laid along each side of the track over the ties, to keep the car wheels from running off the track.' In order to set these long ties they had to be swung by a block and fall along the. outside of the railroad structure, and then thrust in and across the track between the longitudinal girders and such guard rails, leaving the ends sticking out four feet, as already stated. To do this'a framework structure called a hoist was used to servé the office of a derrick,.», e., the block and fall was suspended from it. This hoist rested on such extended ends of the ties.and was fastened and braced 'thereto to hold it upright and in. position. It was regularly shifted forward and fastened anew as the work progressed. It broke from its fastenings and fell over into the street from the'suspended weight of a tie, and killed the plaintiff’s decedent, who was' one of the defendant’s workmen doing the work. He helped to fasten the hoist in position, i.t e., drove some of the' nails. It' was claimed by the plaintiff that the system or method of fastening and bracing the derrick was not a safe, sufficient or scientific one. The plaintiff Was nonsuited at the close of her case on the ground that the defendant was not guilty of negligence, and that the negligence of the deceased and his fellow-workmen, who included a, foreman in charge, caused the accident. ' . . Frederick & Martyn,-for the .appellant., I F, 0eland [George F. Yeomans with him on the brief], for the respondent. • [MAJORITY — Gaynor, J.:] Gaynor, J.: Section 18 of the Labor Law (Laws of 1897, chap. 415) provides that the employers of persons to labor “ shall not furnish or erCct, 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.” It was, therefore, a question of fact for the jury whether the defendant’s method or system of placing and securing the. hoist was a safe one. - The plaintiff did' not devise such method; he only helped in carrying it out. It was for the employer to adopt a safe method or system, and that duty could not bo evaded by delegation. Not only is the said statute in the way of such delegation, but that was the rule before the statute was passed. And the-fall of the hoist while.. being properly used for the purpose for which it was set 'up was of itself evidence that it was unsafe, and brought the .case within the maxim that the thing speaks for itself (Stewart v. Ferguson, 164 N. Y. 553). The objection that- the statute, cited in the foregoing was not available for not- being pleaded in the complaint is founded- on a mistaken notion. It did not need to be pleaded ; it would' not be scientific to plead it. The cause of action is not on a statute. All that thé statute does is to make'the employer liable for unsafe scaffolds, hoists, etc-., even though they be negligently put up by fellow-workmen of the plaintiff as part of their work, whereas' before the statute he was not; in other words, it makes evidence competent ' to show his negligence which' was not competent before: The judgment should be reversed and a new trial granted. Woodward, Jerks and Rich, JJ„ concurred, Judgment reversed and new trial granted, costs to abide the event.