(77 Hun, 74.)

#### CREBARRY v. NATIONAL TRANSIT CO.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Master and Servant—Detective Appliances.

Where plaintiff is injured by the giving way of a stay lath of a scaffold while he was leaning against it, and it appears that the lath was intended merely to keep the posts upright, and there was no evidence that it was insufficient for that purpose, plaintiff cannot recover.

Appeal from circuit court, Cattaraugus county.

Action by Joseph Crebarry against the National Transit Company to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Charles S. Cary, for appellant.

J. R. Jewell, for respondent.

DWIGHT, P. J.

The action was for a bodily injury sustained by the plaintiff, in falling from a scaffold on which he was at work for the defendant. He charges negligence to the defendant in the construction of the scaffold. The work in wThich the plaintiff was employed was in “cutting down” oil tanks. These structures, some of them 90 feet in diameter, are composed of sheets of boiler iron, from 4 to 5 feet wide, riveted together in rings or rows, one on top of another, to the height of from 25 to 30 feet. To cut them down, the rivet heads, on the inside of the tank, are cut off, or so reduced in size as to admit of the rivets being driven through, outward. This is done from the top of the tank downward, and necessitates the construction of a scaffold around the entire inner circumference of the tank, which may be lowered by stages as one after another ring is removed. The scaffold is composed of bents, of two posts or standards each, one against the inner face of the tank, the other four or ñvé feet towards the center, with crosspieces nailed on at the proper height to support the planks on which the workmen stand at the successive stages of the work. As each one of these bents is set up, it is connected to the last one by stay laths of inch boards, nailed on obliquely to the inside posts, which serve to hold *292the bents upright. When one row or ring of the iron sheets has been unriveted and removed, the workmen lower their platform of planks to the next tier of crosspieces below, and knock off the crosspieces from which the planks have just been lowered, which otherwise would be in the way of their passing from one part of the scaffold to another; and it is their habit, at the same time, as they lower their platform, to knock off the stay laths or “braces,” as they are called by some of the witnesses. At the time of the accident to the plaintiff, one ring or row of sheets had been removed, the platform had been lowered one stage, and the crosspieces knocked off; but the plaintiff testifies that the corresponding brace or stay lath, just at the point where he was at work, was left on, by order of the foreman, “because the platform was weak.” In what respect it was weak is not mentioned, nor is the fact at all material,—except, collaterally, to account for the presence of the stay lath a little later,-—because the fall of the plaintiff, as will appear, was not due to any weakness of the scaffold. Having lowered the platform, the men went down to grind their tools before resuming the work. This done, the plaintiff went up again, by the ladder, leaving his tools to be thrown up to him. Then, standing on the platform, and leaning over to catch the tools, he put one hand on the stay lath above him. It gave way, and he fell to the ground, receiving the injury, the responsibility for which he seeks to charge upon the defendant.

It seems to us that the action was not properly maintainable, on the case as made by the record before us. The plaintiff seeks to maintain it on the ground that the defendant failed of its duty, as master, to provide a reasonably safe place for the plaintiff to do his work in. We do not think there was evidence upon which the jury was warranted in finding that there was any neglect of duty on the part of the defendant in this respect. There is no complaint—certainly, no evidence—that the scaffold was not strong enough, in every way, for the work which the plaintiff and his fellow workmen had to do. The stay laths added nothing to the strength of the scaffold. They were not put there for men to hang upon, or to lean against. Their sole purpose was to keep the posts upright, and there is nothing to show that they failed to accomplish that purpose completely. Besides, there is not sufficient evidence, we think, to show that the loose condition of the brace was the fault of the. defendant. There was direct evidence on its part that the braces were all securely nailed on in the first place, and the only evidence to the contrary was the fact that this one gave way under the pressure of the .plaintiff’s hand, and that among the boards which lay at the foot of the scaffold was one—not very well identified with the brace which gave way—which showed only one nail hole in one end, a part of which was split off. But this still left the question open whether the loosening of the brace was due to a defect of original construction, or to something which had happened to it since; and, unless it was shown to be the former, the fault was not chargeable to the defendant. Upon the evidence it seems to be much more probable that the brace had been loosened in knocking *293off the crosspieces which the evidence shows were nailed close to the braces, or, unintentionally, perhaps, in pursuance of the constant habit theretofore of knocking off the braces themselves as fast as the platform was lowered, than that it was originally nailed on so slightly that it would give way under the pressure of a hand lightly laid upon it. On the whole, we think the evidence fails to make out a case of negligence against the defendant in the construction of the scaffold, and that for that reason, even if the defendant’s motion for a nonsuit was denied, its motion for a new trial should have been granted. Adsit v. Wilson, 7 How. Pr. 64, 66; Smith v. Insurance Co., 49 N. Y. 211. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur. Ho ordered.