#### David Hordern, Respondent, *v.*The Salvation Army, Appellant.

First Department,

March 6, 1908.

Negligence — injury on temporary runway — trial—insurance against liability for accident — attorneys admonished.

An expert'steamfitter .sent by his employer to work In the engine room of the defendant's building, who while going to get a ladder walked upon a temporary structure consisting of inclined planks supported at one end upon wooden horseS and erected by the defendant’s fireman to bring coal into the building, is not entitled to recover for injuries received by falling from such structure, • in the absence of evidence showing that it was unsafe or improper for the use . for which it was intended, or that the plaintiff was invited to use it or that such use. was necessary to his employment.

.Attorneys warned that the practice of bringing before the jury the fact that a defendant sued to recover for. personal injuries is insured against liability, will . lead to a reversal of a judgment for the plaintiff, even though there be nc request for the withdrawal of a juror, or the impaneling of a new jury.

Appeal by the defendant,. The Salvation Army, 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 5th day of July, 1907, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 3d day of August, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*Frederick B. Campbell,*for the appellant.

*Stuart G. Gibboney,*for the respondent.

*675Ingraham, J.:

The defendant is the owner of a building known as Eos. 120, 122 and Í21 West Fourteenth street, in -the city of Hew York. There is a room in the cellar which contains boilers for use in the building. The defendant is a corporation organized under the laws of this State as a religious and charitable corporation and devotes this building entirely to its charitable work. The plaintiff was' employed by one Daniel Oarey as a foreman steamfitter. He was sent by his employer to work in the engine room and boiler room of defendant’s building; the boiler room was connected with the engine room but was át a slightly lower level. An adjoining building seems to have been used by the defendant, which was also connected with the boiler room in the main building. The level of a room in the annex, in which defendant stored coal, was about four feet higher than the floor of the boiler room in the main buildings From this room in the annex into the boiler room in the main building a sort of a platform had been erected consisting of planks upon wooden horses, which was used by the employees of defendant for bringing coal from the annex into the boiler room in the main building. On Sunday, October fourth, the plaintiff needed some ladders in his work, and had been told by some employees of the defendant that he' could get ladders in the annex, and he got the ladders from the annex. After he had finished using them he started to take them back into the annex, walking over this platform which was maintained for the purpose of wheeling coal into the boiler room, when one of the planks placed upon the horses turned, and he fell and was injured. This platform was made of three planks, one end of them resting upon the floor of the room in the annex, and other end on the top of wooden horses in the boiler room. These three planks were butted together, and were about four feet above the floor of the boiler room. The employees of the defendant had been constantly using this platform and, so far as appears, no one had ever been injured by it. I can find no evidence as to what caused this accident. The evidence of the. plaintiff is that he used the platform that he found in the defendant’s promises which had been used' for bringing coal into the boiler room; that he walked on the platform several times, and at last fell off and was injured. There is no evidence to sustain any finding that, the *676platform was unsafe or an improper structure for the use to which it was put. The fact that the employees of the defendant'had used ¡dt for the purpose for which it was designed, without any accident. happening, was evidence that it was .sufficient for that purpose,, and there -is no evidence that this platform was constructed or'maintained by the defendant for use by this plaintiff; that the plaintiff was ' ever invited to use it; that tile work that plaintiff was required to do made it necessary to us.e it, or that the defendant.was ever in any way responsible for its use by the plaintiff.' The nature of the structure'was apparent to any one, and especially the.plaintiff,, who' ' was a skilled workman, and used to scaffolding and other appliances of that kind. It was a temporary structure of two or three planks upon'wooden horses .erected, by the fireman, to bring, coal into the engine, room. It was ,not constructed by the defendant for-the rise of any one, but was constructed..by an employee.for his own use. ■ There was -no reason why the plaintiff should use it if he did not want.to, and the defendant o.wed the plaintiff ho duty to furnish ■ him with proper scaffolding or appliances of this kind.- The defend-' ant was not liable because.plaintiff, walking on the loose plank, fell, and the complaint should have been ,dismissed. .

There- was one occurrence, on the trial, however, that requires notice, and which would .require- a reversal of the judgment if the proof would have , justified the submission of the case to the jury. The plaintiff’s counsel was cross-examining one of the witnesses . who was at the time superintendent of the building in which this accident occurred, when counsel asked the witness to. state whether or not it was a,fact that the Salvation Army had a policy-of insurance against the consequences of this, accident. This was- at once - objected to by the defendant. .. The court - sustained the objection and instructed 'the jury to disregard . the statement. Notwithstanding this objection .and the ruling o.f.. the. court, counr sel for the plaintiff insisted upon pressing the question, claim- ' ing that he had a right to get in the evidence,.when the- defendant’s counsel again objected to the statement and argument of counsel. The question as to whether or not under any circumstances evidence of this kind is competent has been so often before the. court and so-uniformly decided that there can be1 now no question'that, under no circumstances is . it proper to ask such a question. The *677only possible ground of asking the question is to suggest to the jury that as the. defendant would sustain no damage by a verdict against it, they should give to the injured plaintiff compensation to which under other circumstances he would not be entitled. The avowed purpose of asking the question here was to meet the objection that the defendant was a charitable corporation and' that its funds should • not be diverted from charitable uses in paying an amount due to the plaintiff because .of his injuries. As counsel in' cases of this kind have been so often admonished as to the impropriety of suggesting either by way of argument or by way of questions. to the jury, or in any other way, that the defendant was protected by insurance,- it .seems to 'be unnecessary to say more than that such a suggestion in the presence of the jury will render any verdict that has been obtained by the plaintiff valueless, as a violation of the rule will require a reversal of the judgment.

It is quite true that in this casé there was no request to the court to withdraw a juror or to impanel a new jury and consequently no denial of such a motion and exception is ’ presented, but counsel has been so often admonished that such practice will not be tolerated, that where it appears from the' record that the rule has been violated we think there should follow as a penalty a reversal of the judgment and the direction of a new trial.

The judgment and order appealed from are reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin, Clarke and Scott, JJ., concurred. . "

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