#### John Webb, Respondent, *v.*B. F. Sturtevant Company, Appellant.

Third Department,

May 7, 1913.

Master and servant—Employers’ Liability Act — injury by tipping of plank laid on beams—proof raising question for jury—liability of building contractor using appliance of owner.

Action under the Employers’ Liability Act. The defendant, a contractor, when installing a heating system, laid unfastened planks upon floor beams which were six or seven feet apart, and the plaintiff, his employee, stepped upon the projecting end of a plank, which tipped and precipitated him to the floor below. Evidence examined, and *held,*that the liability of the defendant was a question of fact for the jury. While the defendant did not own the framework upon which it laid the planks, in using the same as a support for a runway for its servants it was required to use reasonable care in order to make the way safe.

Appeal by the defendant, the B. F. Sturtevant Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 14th day of October, 1912, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 12th day of November, 1912, denying the defendant’s motion for a new trial made upon the minutes.

*Edgar T. Brackett [Luther A. Wait*of counsel], for the appellant.

*William E. Woollard [Michael D. Reilly*of counsel], for the respondent.

Lyon, J.:

The plaintiff was employed by the defendant as a tinker’s helper in its work of installing a heating system in one of the *20shops of the New York Central and Hudson Elver Eailroad Company at West Albany, N. Y. He had worked for two weeks prior to the 11th day of October, 1910, mainly assisting one Williams, who was defendant’s foreman under one Dunn, who was defendant’s superintendent in charge of the work, in getting the large, galvanized iron pipes which were to constitute part of the heating system into the building and riveting them preparatory to placing them in position. One line of heating pipes was to be suspended from the floor of an inclosed balcony which extended across the westerly end of the building. About six feet beneath this balcony and about sixteen feet above the floor was a framework thirty feet long by twenty feet wide, made of floor beams, the crosswise timbers of which were six by eight inches, and about six or seven feet apart, and the lengthwise timbers six by four inches and in each set about four feet apart. The spaces between the timbers were open. The framework was used to carry the weight of countershafts and hangers which were suspended from stringers attached to the under side of the framework. On the morning of October eleventh plaintiff was directed by Dunn to go with Williams upon this framework to assist him in placing the heater pipes. The plaintiff then for the first time went thereon, following Williams from the floor up a ladder which the latter had fastened to a timber at the southerly end of the framework, and from the top of the ladder over the framework towards the northerly end thereof, a distance of fifteen or twenty feet where the work was being done. After working for about’ an hour Williams directed plaintiff to go down to the floor and get a saw, which plaintiff did by going southerly to the ladder and down the ladder to the floor. In returning, plaintiff came up the ladder and turning to the left after reaching the top, as he claimed he had done when following Williams, stepped upon an unfastened plank laid upon the framework which, tipping, fell with plaintiff to the floor below. The plaintiff sustained severe injuries, to recover damages on account of which this action was brought under the provisions of the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352).

The plaintiff testified that laid lengthwise on the framework, *21and leading from near the ladder to the northerly end where Williams and the plaintiff were working, was a runway of unfastened plank two planks wide, which the plaintiff claims furnished a direct and the most natural way for him to go to his work, and that it was the tipping of one of these planks as plaintiff stepped upon it which caused plaintiff to fall, while it is defendant’s contention that there was but a single plank about two inches thick, ten or twelve inches wide and six or seven feet long which laid crosswise of the longitudinal timbers, the end of which projected about eighteen inches over the timber, and that it was plaintiff’s stepping upon the unsupported end of this plank, causing it to tip, which precipitated plaintiff to the floor below. Upon the trial plaintiff introduced testimony to the effect that it was customary to secure planks by means of spikes or ropes, and Dunn testified that the making of the ways secure and safe for plaintiff was left to Williams.

The court left it for the determination of the jury whether the plank which fell with plaintiff was any part of defendant’s scaffold or had been adopted by defendant as a part of its ways by which plaintiff was to get to the work where he was obliged to go.

Upon the argument of the appeal defendant’s counsel waived any defense of contributory negligence, and the single question involved here is whether the evidence was sufficient to establish liability upon the part of the defendant.

It was fairly a question of fact for the jury whether the defendant placed the runway of planks upon the framework. Although Superintendent Dunn testified that he did not do so, and that he thinks the planks did not belong to the defendant, and Foreman Williams testified that there was only the one plank there, which was the one which fell with the plaintiff, and that it did not belong to the defendant, and that none of the defendant’s men put it there, yet as before observed the plaintiff testified that there was a runway two planks wide extending from the ladder to the place where he and Williams were working; and Williams testified that the defendant had about eighty planks on that job; and Dunn testified that when he was upon the framework prior to the accident, whether a *22day or a week before he cannot say, there were planks lying there, but he had no idea how many, that there may have been two and may have been ten; that the defendant had planks there of its own for use which were all over the building wherever workmen had to go and work, and that as the piping went along the workmen were required to move from point to point on the framework, and that defendant’s workmen previous to the aceident had hoisted the pipe, “large pieces of galvanized iron,” upon the framework with block and fall, but that he did not know where the persons who received that pipe up there stood, nor who made the arrangements for the planks up there which the plaintiff testified to. Without planking laid upon this framework defendant’s workmen who received the pipe had no place to stand excepting upon the narrow timbers. Nothing in the evidence indicates the need of this runway upon the part of either the railroad company or of any contractor other than the defendant, and in fact there is no proof that any other contractor was working about this framework at that time or previously. It is significant that the defendant called none of its workmen who had been engaged in hoisting the piping or receiving it upon the framework as witnesses upon the trial. Concededly whatever planks were there were fastened in no way, but lay loosely upon the timbers. Whether the defendant did not with some of its planks construct this runway, and whether such construction was not a negligent one, or whether the defendant did not negligently adopt a defective runway, were under the evidence fairly questions of fact for the jury. The defendant contends, however, that even if such were the fact the defendant is not made liable under the provisions of the Employers’ Liability Act for the reason that the planks did not constitute a scaffold, nor were they any part of defendant’s ways, works, machinery or plant, and that if they constituted a scaffold, it was not defendant’s scaffold, and defendant is not liable for any of its defects; and that the place where the work was being done by plaintiff and Williams not being owned or controlled by the defendant, the defendant is not liable even if such place were not a safe place for the plaintiff to work.

Concededly the building was the property of the railroad *23company in process of construction, and this framework was a permanent fixture of the building, and the defendant in installing its heating plant adopted the situation and conditions as it found them, and used the appliances and tools of the railroad company where necessary.

While the defendant did not have the ownership of the framework it had rightfully the occupation, use and control thereof for its work of suspending piping of the heating plant from the balcony overhead, and this was sufficient without the ownership to furnish a basis for the master’s duty. It was bound to the use of reasonable care in providing its servants with a safe way and a safe place to work, and of maintaining them in a reasonably safe condition, whether the way was constructed or adopted by it. The fact that the framework which acted as the support belonged to the railroad company in no way relieved the defendant from such duty to its servants as to the runway placed thereon. The defect causing injury to the plaintiff was not in the framework, the substructure, but in the negligent condition of the runway, the superstructure, to the knowledge of defendant’s superintendent and foreman, as the jury had the right to find under the evidence and evidently did find by their verdict.

None of the cases cited by appellant hold that a master who was rightfully in the occupation, use and control of the scaffold or way was exempted from liability to the servant for injuries received by the latter through the negligence of the master in failing to use reasonable care in the construction or adoption of the scaffold or way, because of the ownership in another of such scaffold or way, and are not applicable to the case at bar.

The judgment and order appealed from should be affirmed.

Judgment and order unanimously affirmed, with costs.