#### Ella M. Lester, as Administratrix, etc., of John J. Lester, Deceased, Appellant, *v.*Samuel E. Graham, Respondent.

First Department,

July 10, 1913.

Master and servant — negligence — death, of bricklayer—fall of scaffold caused by derrick belonging to independent contractor—evidence — duty of contractor to maintain scaffold.

In an action against a sub-contractor to recover for the death of a bricklayer in his employ, caused by the fall of a scaffold constructed by the defendant, it appeared that the immediate and proximate cause of the accident was a derrick erected by an independent contractor, which was permitted to rest upon the scaffold, and that the defendant directed plaintiff’s intestate to use the scaffold, which fell within an hour after he started to work.

Evidence examined, and *held,*that the case was properly submitted to 'the jury under section 18 of the Labor Law, and that a verdict in favor of the plaintiff should be reinstated.

The duty of a contractor under section 18 of the Labor Law to furnish a safe scaffold also includes the duty to maintain the scaffold.

Appeal by the plaintiff, Ella M. Lester, as administratrix, etc., from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 21st day of July, 1911, setting aside a verdict for §4,000 and granting a new trial in a statutory action under section 1902 *et seq.*of the Code of Civil Procedure to recover for the death of plaintiff’s intestate.

*G. Washbourne Smith*of counsel *[Ralph Gillette*with him on the brief], *Gillette & Clark,*attorneys, for the appellant.

*Edward P. Mowton*of counsel *[T. G. Cowell*with him on the brief], *Nadal, Jones & Mowton,*attorneys, for the respondent.

Clarke, J.:

The defendant was a sub-contractor for the erection of a five-story brick house on the southeasterly comer of Port Washington avenue and One Hundred and Seventy-seventh street. The decedent, John Lester, was a bricklayer and an independent contractor under the defendant Graham, to do the front brick work on the job for §565. There was another independent contractor by the name of Bain to do the stone work on the *652building. He had no relation with Graham, whose contract related to brick work. Under the understanding between Lester and Graham, Graham, who was to lay the red brick, was to erect and furnish the scaffolds. These were actually constructed by his carpenter, McDermott. The method of construction was by projecting outriggers through the windows about six feet, the inside ends being secured to the beams by metal or wire straps. These outriggers were seven or eight feet apart. Two scaffold planks two and one-half inches thick by nine inches wide and ten or eleven feet long, were placed on the outriggers, running parallel with the side of the wall. The inside plank was about five inches from the wall. The outriggers were on a slant, about three or four inches higher on the outside than on the inside. Resting on these two planks were horses about every eight or nine feet apart. The top of the horses was wide enough to hold five planks nine inches wide and about two and one-half inches thick. Their legs were five feet in height, with about eighteen inches spread at the bottom. The inside edge of this platform on the horses was also about five inches from the wall or three inches where the pilasters ran up.

There was a derrick belonging to, erected and used by the stoneman for the purpose of raising the lintels. This was located on the curb and was guyed from two stakes in the street, the guy being a continuous rope which ran through a sheave, so that if one end was unfastened both guys were loosened. These guys kept the derrick from falling forwards towards the building. There was another guy rope which was fastened to the building to prevent it falling backwards into the street. There was also an arm or boom which projected above the top of the building from which hung the block and fail by which the stone lintels were hoisted into position.

Lester and his workmen, a bricklayer Bradberry, and an Italian helper, had gone upon the scaffold at about eight o’clock on the morning of the accident and were busily engaged in setting bricks, their job being nearly completed, when, between half-past nine and quarter to ten, the scaffolding upon which they were at work suddenly gave way, going down at the end on which Lester was at work about twenty feet away from Bradberry and going up at his end. Bradberry caught *653an iron key and a beam and scrambled to safety, the Italian workman caught a beam from which he was rescued by Brad-berry and another man; but Lester fell to the ground and received injuries from which he died that day. Nothing broke, neither the outriggers, nor the planks upon which the horses rested, nor the horses, nor the planks placed upon the horses. The apparent, immediate and proximate cause of the disaster was the derrick. It is established that somebody had unfastened one of the guys in the street and thrown the loose end over to the other stake, the first stake either having been taken out or covered up with sand, the result being that the loosened guys permitted the derrick to rest upon the scaffold. The weight of this derrick with its boom was put at about 1,100 pounds and the inference is its weight forced the horses off their supporting planks and caused the fall of the structure.

The learned court sent the case to the jury under section 18 of the Labor Law (General Laws, chap. 32; Laws of 1897, chap. 415; now Consol. Laws, chap. 31 [Laws of 1909, chap. 36J, as amd. by Laws of 1911, chap. 693): “A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, 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.”

A verdict having been rendered for $4,000, the trial court set it aside upon the ground that it was clearly error to submit the case to the jury upon the theory that the right of action, if any, was -under section 18 of the Labor Law; that said law was intended by the Legislature to apply to and affect only the rights and liabilities existing between employers and employees; that it is a master and servant law and inapplicable to any other contractual relation.

The respondent states: “ The courts in construing the above section have applied it to situations somewhat similar to that in the present case. These cases are fully referred to under point 1 of appellant’s brief. Notwithstanding that the order *654may not be sustained on the particular ground stated by the court below in setting aside the verdict, if the order setting aside the verdict should be sustained upon other grounds than those stated, it should be affirmed.”

We have examined the additional grounds as stated and find nothing therein to warrant the setting aside of the verdict.

In *Quigley*v. *Thatcher*(144 App. Div. 710) it was held that the employee of a sub-contractor who used a scaffolding erected by the contractor could recover against the contractor under section 18 of the Labor Law, saying: “When Thatcher & Son employed this corporation to do the concreting in the construction of this building, the provisions of the Labor Law were written into that contract by operation of law, and section 18 of the Labor Law provides that £A person employing or directing another [the concrete company] to perform labor [quoting the section].’ This provision, designed to protect laborers, is broad enough in its provisions to protect those employed by the concrete company in carrying out its contract; the provision of the statute is that these mechanical contrivances shall be so £ placed and operated as to give proper protection to the life and limb of a person so employed,’ and this means any person who is lawfully engaged in the work.”

In *Boyle*v. *Robinson Co.*(154 App. Div. 1) Laughlin, J., said: “ The general contractor, who caused the hoist to be installed for its own use and the use of its subcontractors and their employees in performing work for it, is clearly liable under the statute, for the hoist at the time of the accident manifestly was unsafe, unsuitable and improper, for such use.” (Citing cases.)

In *Huston*v. *Dobson*(138 App. Div. 810), where an employee of a general contractor fell from a scaffold erected by a subcontractor who was the defendant, Ingraham, P. J., said: “All parties engaged in this transaction must be presumed to have been familiar with the provisions of the Labor Law and the obligations that it imposed upon an employer to furnish safe and suitable scaffolds. When such scaffolds are furnished, those entitled to use them had a right to rely upon the performance by the defendant of the conditions imposed upon him by law; and thus, when a person lawfully using a scaffold *655or other appliance is injured in consequence of the negligence of the person whose duty it is to erect such scaffold, a liability exists independent of the actual employment of the person injured.”

Defendant is claimed to have known of the dangerous situation. Bradberry testified: Immediately after the accident “Mr. Graham was going around throwing his hands around, crazy from the accident. He said: ‘My God! I told him to take the derrick away from that scaffold.’ Q. And did he say who he told ? A. He told the stoneman—that is just the words he said; he told the stoneman to take the derrick away from that scaffold.”

Graham himself testified: “I was there Tuesday morning when Lester and Bradberry went to work. I saw the derrick then. I did not notice that the guys were loose. * * * I do not know whether the guys on the derrick on Tuesday morning at 8 o’clock when I came there were tied or slack; * * * I don’t remember saying to anybody that I told the stoneman to take away his derrick. * * * On the morning * " - prior to the accident I did not know at any time that the derrick was leaning against the scaffold.”

The court charged the jury: “ If you shall find that it was safe and proper as originally constructed; that it was safely and properly maintained so that upon this day in question when this man went upon the scaffold it was a suitable structure for the purpose for which it was intended, that is the end of this case. * * * But if, as I say, it fell by reason of extraneous circumstances over which the defendant had no control and which with reasonable care and prudence he could not have discovered and prevented, then the plaintiff cannot recover.”

After the jury had retired they came in for further instruction. “The jury, are in doubt,” said the foreman, “as to whether there is any outside agency that has to do with the erection and the safety of that scaffold. That is where the point of contention arises. The court: Outside agency, outside person ? Foreman of the jury: Anything pertaining to the outside. The court: As to whether the derrick made it unsafe ? Foreman of the jury: Yes, sir, that is the point of *656contention. The court: If it became unsafe from any cause, whether by the act of man upon it after it was built, or by the act of any material object upon it after it was built, or was originally safe, you may determine, and if it was unsafe, in your judgment, then you may find accordingly. In other words, if there was a duty upon this defendant to see to it that that scaffold was safe, why, he was bound to see to it that it was safe, no matter by what agency it had become effected. Then it comes to a question as to whether he used, under all circumstances, reasonable care and diligence in its inspection to see if it was kept so. Foreman of the jury: That is all, your honor.”

We think this instruction was correct. This duty to furnish includes the duty to maintain, so that the defendant is responsible for the impinging upon the scaffold of the derrick used by an independent contractor. There is sufficient evidence •because defendant was on the scaffold that morning and ought to have seen, if he did not, what McDermott, who built the scaffold, saw plainly. McDermott said: “I knew it was

dangerous from the time I was on the scaffold. I knew it was dangerous the moment I got up and saw the boom resting against the planks.”

We think that the defendant was hable. He constructed, and caused to be constructed, the scaffold, and directed plaintiff’s intestate—who, to be sure was a small contractor, but at the same time a workman—to go upon it to do his work. This was the first time this particular scaffold was used. It fell within an hour after he started to work. The setting aside of the verdict for the reason given was not authorized. Upon the whole case there was enough to take the question to the jury and to sustain the verdict.

The order appealed from should be reversed, the verdict reinstated, and judgment entered thereon, with costs to the appellant.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Order reversed, verdict reinstated, and judgment ordered thereon, with costs to appellant. Order to be' settled on notice.