#### Allie Anderson, as Administratrix, etc., of Anton Anderson, Deceased, Respondent, *v.*Milliken Brothers, Incorporated, Appellant.

Second Department,

January 10, 1908.

Master and servant — negligence — injury by slipping scaffold — failure to comply with Labor Law — Employers’ Liability Act—when failure to give notice of defect immaterial — assumption of risk.

The plaintiff’s intestate was employed in constructing .steel grain "bins which were built by superimposing successive sections, which were thereupon braced by fastening diagonal braces on the inside. The defendant’s foreman directed the decedent and his fellow-servants to place planks upon the braces already installed and stand thereon while fastening other braces. No directions were given as. to how to place or úse the planks, nor any instructions as to fastening them to the braces to prevent slipping, nor were any ropes or fastenings for that purpose furnished or available. While the decedent, standing on the planks, was endeavoring to-pry up the topmost section in order to detach a hook, an act necessary in the prosecution of the work, the plank slipped and he fell to the bottom of the bin,- a distance of about 100 feet. The negligence charged was a failure to comply with the requirements of section 18 of the Labor Law.

*Held,*that it was for the jury to say whether the defendant’s method of placing and securing the planks forming the scaffold was safe, suitable and such as to give the intestate proper protection, and thai a finding that the defendant' had not complied with the. requirements of the statute was warranted by the evidence. ’

Under section 18, of the-Labor Law, it is the duty of a master to adopt a safe, suitable and proper method or system of placing and securing planks forming a scaffold upon which its employees are to work, and that duty cannot be delegated nor liability evaded by an attempted delegation.

A master is liable for injuries received by such defective scaffold "although the employee gave no notice of the defect, under section 3 of the Employers’ Liability Act, if in fact the defect was"known to the master or a “superior person” prior to the accident. Such prior knowledge is established by proof that . the -use of-the planks as- aforesaid was directed .by the defendant and known to its foreman in charge of the work. ..........

The risks which a servant assumes in entering the employment of á master are those only which occur after the due performance by the employer of those duties which the law commands.

Miller, J., dissented, with memorandum.

Appeal by the defendant, Milliken Brothers, Incorporated, from • a judgment of the Supreme Court in favor of the plaintiff, entered *615in the office of the clerk of the county of Kings on the 7th day of February, 1907, upon the verdict of a jury for §5,000, and also from an order entered in said clerk’s office on the 8th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.

*John C. Robinson [Frank v. Johnson*with him on the brief], for the appellant.

*Thomas J. O'Neill [J. Brownson Ker*with him on the brief], for the respondent.

Rich, J.:

This action is brought in behalf of the next of kin of plaintiff’s intestate to recover the damages sustained as the result of his death, alleged to have been caused by the negligence of defendant. The jury have resolved the questions of fact in favor of the plaintiff, and the only question demanding serious consideration is whether the evidence sustains their verdict.

The defendant was engaged as contractor in the construction of a number of steel grain bins for the Hecker-Jones-Jewell Hilling Company, and the work had been going on for several weeks before the plaintiff’s intestate was injured. The bins were square in shape, about twelve by thirteen feet on the inside, and upwards of one hundred feet high; they adjoined each other, and were so constructed that the side of one bin formed the side of the next adjoining bin; éach was built in sections about twenty-five feet in height, only one section being constructed at a time, and seven men, of whom plaintiff’s intestate was one,- were employed in the work. On the inside of each bin, one above another, at equal distances of about five feet, four iron braces were placed extending across the corners diagonally from side to side; from the apex of the corner to the end of the brace on each side was about four feet, and from point to point, in a diagonal line, about five and one-half feet. Each section was first put in place and then, commencing at the bottom, the braces were placed and fastened before the next section was placed. Plaintiff’s, intestate and' one' Stnbb were engaged in adjusting and placing the braces, one holding them in position while the other put bolts through the brace and side of the bin, on *616which ■ workmen in' the adjoining bin placed huts and tightened them until they held the-.brace firmly in position. A boats:wain’s chair was used in the work, winch was-suspended from the top of the next higher section by a block.and fall,' one of the hooks holding which was hooked over the top of such section. The work of building each bin was commenced at the bottom, and as the- sections were -placed this hook had to be pulled out from between the plates and hooked over the top of the last placed section.' This was accomplished by .the use of a pinchbar with which the plates were pried apart until the hook. could be pulled out. When the' work of building these bin's was started, the plaintiffs ■ intestate and Stubb placed the braces in position by standing on tlie highest brace, from which point they could place the - next higher brace. Only óné man could work at a time in this way,' and' defendant’s foreman directed them to use .plank that their work might, be done quicker and better. lie gave them no instructions as to how to place or use the plank, did not tell them to tie or fasten them to the braces to prevent their slipping or shifting, and did' not furnish them with ropes or fastenings of any kind to use - for that' purpose, nor.does it appear from the evidence that materials that might have been used for that purpose were available.' The men procured from lumber on.the premises two spruce planks two inches thick, ten inches wide and ten or eleven feet long, which they placed on the braces without fastening of any kind, and thereafter stood upon them while adjusting the braces, moving them as the work required. They had followed this method from the time they were ordered to use plank, without. the happening of any accident. At the. time plaintiffs intestate was injured the bin upon which he was working had' been constructed to the height, of' one hundred and ten feet. He was standing upon the two' planks, resting upon the braces in the manner described, on the inside of the bin, about seven feet below its top, attending to Ms work, when it became necessary to move - the hook attached to the boatswain’s chair 'to some other position. ■ A pinchbar'was handed him with which he proceeded . to pry the plates' apart to release the hook; while engaged in this work the planks oh which he stood, shifted or slipped- to one side, causing him to lose his balance, alnd lie fell to the bottom of- the bin (a distance of about, one hundred feet) and was killed-.

*617The plaintiff’s cause-of action, is based upon the provisions of section 18 of the Labor Law (Laws of 1897, chap. 415), and the question whether the defendant’s method or system of placing and securing the planks forming the scaffold upon which the plaintiff’s intestate was working was safe, suitable and proper and such as to give him proper protection, was a question of fact for the jury. *(Haggblad*v. *Brooklyn Heights R. R. Co.,*117 App. Div. 838.) The picture presented to them by the evidence was that of a hollow steel, square twelve by thirteen feet inside measurement, and one- hundred and ten feet high, on the inside of which the plaintiff’s intestate was standing upon a scaffold composed of two planks, each ten inches wide, resting upon two of the corner brackets affording them a support for a distance, of four feet and six inches from the side of the bin, where the braces ended; the planks were not fastened together, and no precaution of any kind was taken to prevent their slipping, shifting or working off the end of the brace, and there was nothing to prevent the workman, should he lose his balance by reason of the shifting or slipping of the planks or as the result of a misstep, from falling to.the bottom of the bin; and the -jury reached the conclusion, which the evidence warrants and sustains, that such method or system directed and employed by the defendant was nót a compliance with the requirements of the statute. Although the plaintiff’s intestate and Stubb placed the planks upon which they stood, neither of them devised such method or followed it until ordered to do so by defendant’s foreman in charge of the work. They- only helped to carry out the plan, not of their own volition, but in accordance with the order of their superior. The statute placed the duty upon the defendant of adopting a safe, suitable and proper method or system of placing and securing the planks forming the scaffold upon which its employees were to work, and that duty could not be delegated nor liability evaded by attempted delegation. In these respects the case is squarely within the decision of this court in *Haggblad*v. *Brooklyn Heights R. R. Co. (supra).*Our attention is- directed to *Williams*v. *First Nat. Bank*(118 App. Div. 555); *Rotondo*v. *Smyth*(92 id. 153); *Wingert*v. *Krakauer*(Id. 223) and *Kimmer*v. *Weber*(151 N. Y. 417) as sustaining the defendant’s- contention that because the plaintiff’s intestate and Stubb placed the plank upon which the former was standing when the *618accident occurred, and tile shifting, or slipping of the plank being the sole cause of the accident, the evidence failed to establish negligence on the part of the defendant, or the violation of any commonr law or statutory duty which-it owed the deceased, for which reason the trial court erred in not dismissing" the complaint.' The law declared in these cases does not control the disposition of the case at bar nor sustain the contention. It has no application to the facts appearing in this record. .In the *Williams*case, the accident occurred by reason of the manner in which a plank upon which the plaintiff was standing, and which broke under his weight, .was placed upon two horses, and the court held that the employer having, furnished suitable. and proper materials for doing the work; their adjustment was within, the control of the men using them, for which adjustment. the defendant was not responsible. .In the *Iiotondo*case the defendant instructed the deceased and another of his employees to construct a scaffold and put it up on which to do his work. Proper and suitable material for a safe construction was at hand, but it was constructed without fastening to prevent its swaying out from the. building. The deceased stepped -from- a window to the scaffold, which swhyed out from the building, causing his fall,, and the court held that for the omission to properly fasten it the defendant was not liable. "The *WingeH*case involved substantially the same -facts, and was disposed of ón the same principle ; and the *Kimmer*case was decided before the enactment of the. statute. upon the provisions of which the plaintiff’s cause of .action rests. In each of these cases proper materials were at hand, by the use of which safe and suitable scaffolds could have been con,strúcted, and the - dangerous conditions were caused by the failure of the employees to use the materials so provided; while in the case at bar no material-was furnished or shown to be available to fasten and prevent the planks, from shifting or slipping on the braces on which they were placed. The direction of tlie defendant was to use plank; the only material provided was the plank ;■ they cbuld be used in no "other manner, under the circumstances shown, than by laying them on the braces.

■ The defendant’s -contention that the provisions of section 3 of the Employers’ Liability Act. (Laws of 1902, chap. 600) preclude a recov- •' ery because of the failure of the deceased to give-.notice or informa*619tion of the conditions resulting in his death to the defendant or to some person in its service superior to-himself, is without merit, as the case is within the exception contained in the section, “ unless it shall appear on the trial that such defect or. negligence was known to such employer, or superior person, prior to such injuries to'the employee.” It was established upon the trial of this action, without contradiction, that the use of the plank was directed by-defendant, and consequently necessarily known to defendant’s foreman in charge of the work. It is contended that the evidence establishes an assumption of the risk by plaintiff’s intestate, becausé of his knowledge of the risk and danger necessarily attendant upon the use of the planks in the manner in which he used them, and that the trial court should have so held as matter of law. This contention is answered by the well-settled rule of law that the risks of the service which a servant assumes in entering the employment of a master are those only which occur after the due performance by the employer of those duties which the law enjoins upon him. *(Jenks*v. Thompson, 179 N. Y. 20.) This rule the learned trial justice asserted in his charge to the jury in submitting to them the ' question whether the deceased was shown by the evidence to have assumed the risk of injury, and no exceptions were taken by the defendant to the submission of this question.

The judgment and order must be affirmed, with costs.

Woodwabd, Jenks and Gaynob, JJ., concurred; Milleb, J., dissented in memorandum.

Miller, J. (dissenting):

The rule requiring, the master to provide a safe method or system cannot be applied to a simple thing like the placing of a. plank on two braces. The so-called scaffold,, a. plank, was-moved by the deceased himself from section to section as the work progressed, and I do not think it was intended by the statute (Labor Law, § 18) to make the master liable to a. servant for the negligence of the latter.

Judgment and order affirmed, with costs.