#### KUHN v. DELAWARE, L. & W. R. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Second Appeal—Affirmance.

On the second trial of an action for death resulting from injuries caused by defendant’s negligence, where the questions whether defendant had performed its full duty, and, if not, whether its omission caused the injury to plaintiff’s intestate, and whether such injury resulted in his death, were questions of fact for the jury, and the trial judge, in the course of his rulings and in his charge, followed the doctrine laid down by the supreme court on a prior appeal, the verdict and judgment will not be disturbed on a second appeal.

S. Action for Death by Wrongful Act—Instructions.

In an action for the death of plaintiff’s intestate, resulting from injuries caused by defendant’s negligence, the court properly charged that if there was negligence by deceased contributing to the death, and in the absence of which death would not have occurred, “then it could not be said that his death was the result of the accident, but was the result of his own negligence; but if death would have occurred in any event, whether he was careless or not, then I do not think the defendant is relieved.”

3. Opinion Evidence—Strength of Materials.

In an action for the death of defendant’s employe, caused by an insufficient scaffold, it was not error to permit a carpenter to give his opinion of the nature and character of hemlock, or of its strength as material to be used in scaffolding, and to state that a stick of timber 2x4 would exceed in strength one “being made of inch boards.”

Appeal from circuit court, Oneida county.

Action by Christina Kuhn, as administratrix of the estate of Joseph Kuhn, deceased, against the Delaware, Lackawanna & Western Railroad Company, for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying its motion for a new trial, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MERWIN and PARKER, JJ.

William Kernan, for appellant.

Charles H. Searle, for respondent.

HARDIN, P. J.

Plaintiff’s intestate, at the time he received the injuries complained of, was at work upon a scaffold which had been erected by the defendant to use in reslating the roof upon its engine house in the city of Utica. In September, 1891, the superintendent of repairs of the defendant directed the foreman of the defendant’s carpenter shop to construct “some horses that would be sufficient for men to work on and slate the roof,” which direction was not accompanied by any specific instruction as to what material was to be used, nor the number of men that were to work upon the scaffold. The scaffold was constructed some 16 feet above the ground, and in length about 25 feet, supported by three horses,— one at each end, and the other in the center. Evidence was given upon the trial tending to show that the accident was occasioned by the giving way of one or more of the horses upon which the planks for the platform or scaffold were placed. While there was considerable conflict in the evidence, we are of the opinion that the jury had *340before it evidence sufficient to warrant it in finding that the injuries the plaintiff received were due to the structural weakness of the scaffold, which originated from the use of insufficient or improper materials, and from its being constructed in an insufficient and improper manner. Defendant sought to have the court nonsuit the plaintiff, and, when the motion for that purpose was denied, took an exception. When this case was before us on former appeal (77 Hun, 389, 28 N. Y. Supp. 883), quite a full discussion was had of the principles of law applicable to the general features of the case, and near the close of the opinion it was said:

> “That the defendant owed the plaintiff’s intestate the duty to exercise' reasonable care and prudence to furnish him a safe and proper place in which to prosecute his work, and if it became dangerous, and the danger could be foreseen and guarded against by the exercise of reasonable care, to exercise such care and adopt such precautions as would protect the intestate, is abundantly established by the authorities cited. That this duty could not be delegated by the defendant to any of its servants, so as to exonerate it from responsibility to the plaintiff or her intestate, is equally well settled."

After a full consideration of the evidence found in the present appeal book, and due deference being had to the conclusion, we there reached, we think the trial judge properly submitted the question-to the jury whether the defendant had performed its full duty, and, if not, whether its omission occasioned the injury to the plaintiff’s intestate, and whether that injury resulted in his death. We think, upon the whole evidence, these were questions of fact for the jury to determine, and that the trial judge properly refused to hold in accordance with the defendant’s contention upon them, as matters of law, and committed no error in confiding the questions to the jury. Apparently, the trial judge, in the course of his rulings at the trial, and in the delivery of his charge to the jury, followed the doctrine laid down in the opinion of this court when the case ' was here upon the former appeal. The jury were carefully instructed that if the deceased in any way contributed to the injuries which he received, especially if he “knowingly aided in placing too much weight upon the scaffold,” a recovery could not be had.

2. We think no .error was committed by the trial judge in delivering the case to the jury upon that branch which relates to the conduct of the deceased after he received the injuries. The jury were told, in explicit language, that:

> “If there was negligence on the part of the deceased, contributing to the death, and in the absence of which the death would not have occurred, then it could not be said that his death was the result of the accident, but was the result of his own negligence. But if death would have occurred in any event, whether he was careless or not, then I do not think the defendant is relieved:”

The principal language we have given was again repeated, and,, we think, was sufficiently adhered to in all comments made by the trial judge to the jury on that branch of the case, and that the exceptions taken by the defendant to the charge in regard to that branch of the case do not present any error requiring us to interfere with the verdict.

*3413. We think no error was committed in receiving the testimony of the wife of the deceased, and that the exception taken to the questions propounded at folios 107 and 110 present no error.

4. When the question was propounded as to the custom to slate upon scaffolds, at folio 159, it appears by the case that the question was answered before any objection was made thereto. When the objection was heard, the court observed, “I will let it stand.” The fact had already appeared in the case that scaffolds were used in process of slating, and we think the question may have been understood to be an inquiry as to a knowledge of the witness on .the subject of the use of scaffolds in slating roofs. We think the exception taken to the observation of the court does not require us to interfere with the verdict.

5. When Richards, a carpenter and builder, was upon the stand, he gave evidence as to his experience in having erected scaffolds for shinglers and repairers to work upon, and stated that he had erected many scaffolds upon which slaters had worked; and, without objection, he stated that hemlock has “a loose fiber.” Thereupon he was asked, “Is it a strong wood, or a weak wood, in the form of a board?” This was objected to as incompetent, and the objection was overruled, and the defendant took an exception. The only answer the witness made was in the following language, “Well, it is not so strong as some wood.” Thereupon the question was propounded to him, ‘What wood is stronger?” This question was objected to, and the objection overruled, and defendant took an exception, and the witness answered, “Most any kind of wood.” He was then, against the defendant’s objection and exception, allowed to state the effect of nailing upon a hemlock board, and, in answer to the question, said, “Well, of course, it don’t hold as much as it would in thicker stuff.” After that answer had been given the defendant moved to strike out the answer, and the court refused, and the defendant excepted. Some other questions were propounded, of a similar nature, relating to the nature and character of hemlock, and the strength of inch boards. Most of the facts stated by this witness are so well understood that the court may be said to be able to take judicial notice thereof. However, under the circumstances, we think that the witness was not improperly permitted to give.the facts narrated by him in respect to the nature and character of hemlock, or its strength as material to be used in scaffolding. Nor do we think there was any prejudice in allowing him to state— what must be quite obvious to the common sense of any individual— that a stick of timber.2x4 would exceed in strength one “being made of inch boards.” We are of the opinion that there is nothing found in the testimony of Richards, the carpenter, which requires us to disturb the verdict of the jury.

In the course of the charge delivered by the judge, he referred to the rule laid down in Stringham v. Hilton, 111 N. Y. 195, 18 N. E. 870, and called the attention of the jury to the statement in the course of the opinion that the question is—

> “Whether, in selecting tools and machinery for their use, he was reasonably prudent and careful, not whether better machinery might not have *342been' obtained, but whether that provided waa in fact adequate and proper for the use to which it was to be applied.”

He followed this rule of law by observing, viz.:

> “Evidently, the horses might have been made larger and stronger. As suggested by the counsel, two by fours might have been used for the legs. They might have used immensely stronger lumber all around,—larger size, and all that. The defendant was not guilty of negligence because it did not furnish the very strongest horses that could have been made. That is not the test. The question is whether the one it did furnish was reasonably safe. That is the rule. Of course, it is a question of fact in each particular -case.”

We think the questions relating to the alleged insufficiency of the scaffold were properly and carefully submitted by the trial judge to the jury, and that their findings are adverse to the defendant, and it seems to be our duty to accept their verdict.

Judgment and order affirmed, writh costs. All concur.