#### Mary Burns, as Administratrix, etc., of Patrick H. Burns, Deceased, Respondent, *v.*William L. Crow, Appellant.

First Department,

January 10, 1908.

negligence — master and servant — fall through opening in floor — evidence— question based on conflicting testimony and calling for conclusions — change of conditions after accident.

In an action to recover for the death of a workman who fell through the open space beneath a scaffold on the twelfth floor of a building under construction while standing upon a lower platform and dumping brick for the masons on the one above, it is reversible error to admit testimon) as to the safety and security of the scaffold based on "the description of this scaffold and opening that you have heard here in court and what you saw at the time.”

Such question is improper in form as it requires the witness to draw inferences from the conflicting testimony of other witnesses, and also because it calls for a conclusion.

Expert testimony is admissible as to the character and strength of the material used in a scaffold, the proper manner of construction and the' weight which it will sustain, but not upon the very question which the jury must pass upon.

It is also reversible, error to admit testimony 'that immediately following the - accident the defendant covered the opening through which the intestate fell.

Patterson, P. J., dissented.

Appeal by the defendant, William L. Crow, from a judgment of ■ the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5tli day of March, .1907, upon the verdict of a jury for $3,000, and"also from an order entered in said clerk’s office on the 4th day of March, 1907, denying the defendant’s motion for a new -trial made upon the minutes.

*Frank V.*Johnson, for the appellant.

*Edward J.*Gavegan, for the respondent.

McLaughlin, J.:

Action to recover damages for death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. Plaintiff had a recovery, from which defendant appeals.

The intestate, at the time of his death, was in the employ of the defendant) who ivas constructing a twelve-story building,.the frame*252work o£ which was iron and the walls brick. The framework had been substantially completed and the wall's had béen carried to the floor of the twelfth story. The masons, in laying the bricks, stood upon scaffolding made of planks, which were, in the first instance, placed upon iron beams and girders Of the building, but as the wall increased in height, a sufficient number of planks to make a platform was taken from near the wall of the building and placed upon' wooden horses, and, as each succeeding floor was reached, the same' ■ method was pursued. Whenever the scaffolds upon which the masons were at work were'at such height that the servants who carried the mortar and brick could not reach them from the planks laid upon the floor beams, a lower scaffold was made by .placing planks upon smaller horses called “ ponies,” from which planks ' extended to the floor. The brick and mortar were taken up in an elevator. At the time of the accident the elevator only ran to the eleventh floor. The intestate was engaged, with others, in carrying brick and mortar. Immediately preceding the accident hé took a. liod full of brick from the elevator, went up on the runway, stepped on the lower platform, turned around and dumped the brick onto the platform on which the masons were at work. In doing so he in some way — just how does not appear—fell from the lower platform, went into the open space immediately beneath the platform on which the masons were at work and received injuries from . which he died shortly thereafter.

It is not claimed jhat the platform or scaffolding was defective in quality or construction. The sole contention is — and the case was sent to the jury upon this theory — that the deféndant was negligent, if at all, in not covering the opening into which he fell. The defendant contends that he was under no obligation to have this space covered; that there was nothing in the nature of the work to indicate that covering was necessary, and the fact that there was ho covering was obvious to the intestate and he having continued in defendant’s employ with, knowledge of this fact, assumed the risk.

I have reached the conclusion that the judgment must be reversed for errors committed at the trial, and inasmuch as the evidence at the new trial may be different from what it was at the one which-resulted in the judgment appealed from,- it would serve no useful *253purpose to consider or pass upon the contentions of the respective parties.

At the trial the witness Hunt, after he had testified that he had huilt a great many scaffolds, was asked the following question: *“*Q. How, from the description of this scaffolding and opening that you have heard here in court and what you saw at the time, would you say that that scaffolding was a 'safe, proper and secure one ? ” The question was objected to on various grounds, which were overruled, and an exception taken, and the witness answered: “Ho, sir, it was not safe. To make it safe and proper and secure, I would cover it in with planks, planks right in the opening before I put my scaffold.” A similar question was put to the witness McGlone, which was also objected to and the objection overruled and an exception taken. He stated that the scaffold was not safe. The questions were improper in form and called for a conclusion of the witness. They were improper in form inasmuch as they required the witnesses to draw inferences from conflicting testimony of other witnesses. Where the facts are controvered or are not entirely clear, a hypothetical question may be put to a witness who is competént to testify, based upon the facts claimed to have been, established, but such witness cannot be required to give an opinion based upon conflicting evidence. *(Guiterman*v. *Liverpool, etc., Steamship Co.,*83 N. Y. 358; *Reynolds*v. *Robinson,*64 id. 589.)

The objections to the questions should also have been .sustained because the answers called for conclusions of -the witnesses; that is, whether the scaffold and run were safe. This was the very ques- • tion which the jury had to pass upon. It was, in effect, permitting the witness to say to the jury that the plaintiff is entitled to recover. *(Dolan*v. *Herring-Hall-Marvin Safe Co.,*105 App. Div. 366.) Testimony of this character has been many times condemned. *(Harley*v. *B. C. M. Co.,*142 N. Y. 31; *Dougherty*v. *Milliken,*163 id. 527.) It is true that expert testimony is admissible with reference to the character and strength of materials used in the construction of scaffolds, the proper manner in which to construct them, and the weight which they will sustain. *(Jenks v. Thompson,*179 N. Y. 20.) This class of evidence is admitted for the purpose of laying before the jury all of the facts, to the end that they may determine" whether a person has performed his duty in furnishing a reasonably *254safe place for his workmen; in other words, whether the scaffold is safe, in view of the weight put, and the work performed upon it.

The witness Hunt was also permitted to testify, against the objection of defendant’s counsel, that immediately following the accident the opening under the masons’ platform, was covered. This also necessitates a reversal of the judgment. *(Getty*v. *Town of Hamlin,*127 N. Y. 636.) What occurred subsequent to the accident, or what precautions were -taken to prevent similar accidents, could not be proved for the purpose of showing that-the defendant’s negligence was the cause of the intestate’s death. Whether that were caused by defendant’s negligence -necessarily had to be determined from the fact's as they existed at the timé of the injury. *(Clapper*v. *Town of Waterford,*131 N. Y. 382.)

The judgment and order appealed from must be reversed and- a new trial ordered, with costs to appellant to abide event.

Houghton, Scott and Lambert, JJ., concurred; Patterson, P. J., dissented. .

Judgment and order reversed, new trial ordered, costs to- appellant to abide event.-