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

(Supreme Court, General Term, Fourth Department.

May 18, 1894.)

Master and Servant—Safe Place for Servant to Work.

The superintendent of repairs of defendant railroad company directed the foreman of the carpenter shop to construct scaffolding for an employe to work on, but he gave no instructions as to the materials or method of *884construction. The carpenter was without experience in constructing such scaffolding, and, owing to the quality o£ the materials used, the scaffolding was not of sufficient, strength, and the employe was injured by its fall. *Held,*that defendant was liable for such injuries, as a master’s duty to furnish a safe place for his servant to work cannot be delegated to another servant, so as to relieve the master from liability.

Appeal from circuit court, Oneida county.

Action by Christina Kuhn, as administratrix, against the Delaware, Lackawanna & Western Railroad Company. The complaint was dismissed, and plaintiff appeals. Reversed.

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

Charles H. Searle, for appellant.

William Kernan, for respondent.

MARTIN, J.

On the trial of this action, the plaintiff was non-suited. The action was to recover damages sustained by the plaintiff by reason of the death of her intestate, which was alleged to have been caused by the defendant’s negligence. The intestate, at the. time of his injury, was at work upon a scaffold which had been erected by the defendant for the purpose of reslating the roof upon its engine house in the city of Utica. The work of reslating was commenced about the 1st of September, 1891. Two of the defendant’s employes, Cole and Warner, who had had some experieuce as slaters, were directed to do the work. The defendant’s superintendent of repairs 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,” without giving any directions or information whatever as to the material to be used, the number of men that were to work upon the scaffold, or whether the old slate was to be used. The carpenter had had no experience in making horses or scaffolds for the purpose for which this was to be used. The scaffold, as constructed, was 16 feet above the ground, about 25 feet in length, and was supported by three horses,—one at each end and one at the center. The horses upon which the floor of the scaffold was placed were constructed by taking four hemlock boards 1 inch in thickness, 6 inches in width, and 16 feet in length, and nailing them to a headpiece or ledger, which was about 4 feet long. Then strips of the same material, 4 inches in width and 1 inch in thickness, were used for stays running crosswise inside of the legs, and 5-inch boards of the same kind were nailed on laterally, as braces or cleats. There were six rows of cleats on the horses first constructed, and upon the others there were but four. The material of which they were constructed was not tested to ascertain whether it was defective or otherwise. They were set up next to the building, and planks about 12 inches in width placed on top of them, two being placed side by side from the center horse each way to the other. At first, braces ran up from near the foot of the horses to the middle of the plank which formed the floor, but the passing of engines required these to be taken off from time to time, and after a few days they were not put on again. One of the horses was broken by an engine before the time of the accident, and the *885carpenter then erected a staging on one side of a box car to take its place. The plaintiff’s intestate was a common laborer in the employ of the defendant, doing such work around its shops and elsewhere as he was directed. The defendant’s superintendent of repairs directed the intestate to go to work upon this platform or scaffold, assisting the men who were reslating this roof. On September 15, 1891, which was the day of the accident, the scaffold had been moved, the old slate removed from a portion of the roof, a part ■of which was left upon the roof, and the remainder placed upon the scaffold. At the time of the accident the decedent was engaged in laying felt on the roof where the slate were to be placed. While thus engaged the scaffold gave away, precipitating the decedent to the ground, where he struck his back on one of the rails in the defendant’s road, and received injuries from which he died November 3, 1892. None of the persons engaged in constructing this scaffold had had any experience in building scaffolds of that kind, and none of them had seen scaffolds, for any purpose, of the height of this, built in the manner this was constructed. It was found after the accident that the horses were badly broken, were torn apart, were in pieces, and the lumber of which they were constructed was season-cracked, shaky, and cross-grained.

It was proved that hendock boards were not a proper or substantial material of which to construct the uprights or legs for such horses or scaffold; that hemlock lumber is usually of loose fiber, brittle, and cross-grained; that such boards do not hold nails well; that they split and are weakened by nailing on braces; and that, where hemlock is used as supports for scaffolds, two by fours or three by fours are ordinarily used. The evidence was sufficient to have justified the jury in finding that the scaffold was used in the manner contemplated when it was constructed; that the use was reasonable, if the scaffold had been properly constructed; and that the defendant’s superintendent knew of the manner in which it was. used, and how it was constructed, before he sent the plaintiff’s intestate to work upon it. The evidence also tended to show that the accident was occasioned by the giving away of one or more of the horses upon which the planks for the platform.were placed, and that after the accident the condition of these horses was such as to indicate quite plainly that such was the cause of the accident. We think it is quite manifest from the evidence that the jury would have been warranted in finding that the fall of the scaffold, and consequent injury of the plaintiff’s intestate, were due to the structural weakness of the scaffold, which originated from the use of insufficient and improper materials, and from being constructed in an unsubstantial and improper manner. A master owes to his servant the duty of furnishing adequate and suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor, and assist in the performance of his work. No one of these duties can be delegated by the master to a servant, of any grade, so as to exonerate the master from responsibility to another servant who has been injured by its nonper*886formance. The rule that the servant takes the risk of the service presupposes that the master has performed the duties of care and vigilance which the law casts upon him. It only excuses where injury results to the servant from a hazard incident to the natúre of the employment, and not from a cause which the exercise of proper care and prudence on the part of the master would have foreseen and guarded against. Pantzar v. Mining Co., 99 N. Y. 368, 2 N. E. 24; Davidson v. Cornell, 132 N. Y. 228, 234, 30 N. E. 573. The ride as to the duty of the master is not quite correctly stated in the Pantzar Case, in that the duty to furnish suitable tools, and a safe place in which to work, is not an absolute one, but is satisfied by the exercise of reasonable care and prudence on the part of the master to supply such tools and furnish such place; that is, such care and caution as a prudent man would take for the safety and protection of his own person. Probst v. Delamater, 100 N. Y. 266, 3 N. E. 184; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870. The doctrine of the Pantzar Case was reasserted in McGovern v. Railroad Co., 123 N. Y. 280, 288, 25 N. E. 373, and the court then added:

“When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger. This is the master’s duty, and however he may choose to exercise it, whether through the supervision of a superintendent, or some lower grade of employment, it still continues his duty; and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned by its nonperformance. Laning v. Railroad Co., 49 N. Y. 521, 532; Corcoran v. Holbrook, 59 N. Y. 517.”'

When the master orders a servant to perform his work in a place prepared for him, the servant has a right to assume that the place' has been made reasonably safe by the master through other and competent servants. Kranz v. Railway Co.. 123 N. Y. 1, 4, N E. 206. In Benzing v. Steinway, 101 N. Y. 547, 551, 5 N. E. 449, it was said:

“It has been repeatedly held 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, and that the negligence of the master co-operating with that of a servant ,in producing injury to a co-servant renders the master liable. Stringham v. Stewart, 100 N. Y. 516, 3 N. E. 575, and cases cited. * * * The master is chargeable, ordinarily, with knowledge of the means necessary to be employed.in performing his work; and, when their procurement and selection is delegated to a servant, he stands in the place of the master, in discharging those duties, and the servant’s neglect in that office is chargeable to the employer, as an omission of duty enjoined upon him. Ellis v. Railroad Co., 95 N. Y. 546; Slater v. Jewett, 85 N. Y. 62.”

The trial court, in effect, held that the question of the contributory negligence of the plaintiff’s intestate was, .under the evidence, a question of fact for the jury. In this conclusion we concur. But it held that the evidence was insufficient to justify it in submitting' to the jury the question of the defendant’s negligence. Thus, the question to be determined is whether there was sufficient evidence *887of the defendant’s negligence to require the court to submit that question to the jury. The question before us being the propriety of a nonsuit, the plaintiff is entitled to the benefit of all the conclusions that the jury would have been warranted in drawing from the facts and circumstances proved. 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. Such being the duty of the defendant, a careful examination of the evidence renders it quite obvious that the question whether this duty had been performed, and, if not, whether its omission occasioned the injury to the plaintiff’s intestate which resulted in his death, were questions of fact for the jury, and not questions of law to be determined by the court. We are of the opinion that the evidence was sufficient to require the submission to the jury of the questions of the defendant’s negligence, and whether the injury complained of was occasioned thereby, and that the court erred in holding, as a matter of law, that the evidence was insufficient to justify it in submitting those questions to the jury, and for this error the judgment should be reversed. Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.