#### Alston *v.*Stewart.

Where a contractor for stone-work on a building obtains permission from the contractor for brick-work to use a scaffold erected for the bricklayers, and is at the same time notified, through his agents, that the scaffold must be strengthened before being used for raising stone, it is negligence on the part of the contractor for stone-work not to strengthen the scaffold, and if it breaks under the weight of a stone, and an employee of the bricklayer is injured, the contractor for stone-work is liable in damages to the injured party. The competency of the defendants’ employees is immaterial. .

Where a witness for plaintiff testified that the defendant had no special right to use the scaffold, it was inadmissible to ask, on cross-examination, if, by a usage of trade, the contractor for stone-work had a right to use the bricklayers’ scaffold, as there could be no such usage as would justify the use of insufficient scaffolding.

In an action for damages for personal injuries, it is incompetent for the defendant to offer evidence in mitigation of damages that the plaintiff’s doctor’s bill and expenses were paid by a beneficial association.

Nov. 5, 1889.

Error, No. 133, Oct T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict in favor of the plaintiff, in an action on the case, by Silas W. Stewart against A. Alston, John G. Forrester and W. C. Alston, trading as A. Alston & Co., to récover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendants, at June T. 1887, No. 283. Sterrett, J., absent.

The pleadings are not stated in the paper-books.

The evidence was to the following effect, on the trial, before Collier, J.:

The plaintiff was a bricklayer in the employment of C. G. Dixon & Co., who were contractors for the brick-work on a building being erected for the Electric Light Co. of Pittsburgh. The defendants were contractors for the stone-work. C. G. Dixon &Co. had erected scaffolding for the ' use of the bricklayers. William Hay, foreman for the defendants, obtained from Dixon & Co. permission to use the scaffold to aid him in placing a stone sill *52on the wall. There was evidence that Hay was notified that the scaffold was not safe for the purpose of raising the stone, and that, if used for that purpose, it must be braced. The defendants did not brace or strengthen the scaffold and, in attempting to raise a stone, weighing about 500 pounds, the scaffold broke and precipitated the plaintiff some forty feet to the ground, breaking his leg and rendering an amputation necessary.

C. G. Dixon, being on the stand as plaintiff’s witness, was asked . this question:

“ Q. State whether or not Alston & Co., or their men, had any right to use the scaffolding. A. They had no special rights from me. No, sir.”

Counsel for defendants then proposed to ask the witness if it is not the usage of the trade, where the contract of the bricklayer is to erect a building, that all the necessary stone placed in the windows, and the like, are to go over the scaffold of the bricklayer.

Objected to as not cross-exatnination and as unimportant and irrelevant. Objection sustained. Exception. [3]

When the plaintiff was on the stand, under cross-examination, defendants proposed to prove that the plaintiff got between $500 and *$600*from the Bricklayers’ Union to pay his doctor’s bill and expenses, with regard to his medical treatment and lost time.

Objected to as unimportant and irrelevant, because the witness had not been asked as to what his actual expenditures were that he made himself with his own money. Objection sustained. Exception. [4]

The defendants requested the court to charge:

[“ 1. The fact that the scaffolding, where the defendants’ employes were working, fell, and that the plaintiff was thereby injured, raises no presumption of liability for the injuries which’the plaintiff received]. It is enough if the defendants employed capable and competent men to transport and set the cut stone which was in the defendants’ contract. *Ans.*That part of the point in brackets is- affirmed; the balance is refused.” [1]

[“ 2. The law presumes that the defendants, Messrs. Alston & Co., had a competent foreman to direct the operations ot the men. The burden of proving incapacity is upon the plaintiff], and whether the foreman of Dixon & Co. or the foreman of Alston & Co., Hay, was mistaken in the sustaining power of the scaffold is immaterial. *Ans.*That part in brackets is affirmed; the balance of the point is refused.” [2]

*The assignments of error*specified, 1-2, the'answers to defendants’ points, quoting the points and answers; and, 3-4, the rulings on the evidence, quoting them.

*D. M. Alston,*with him *Marshalls & Imbrie,*for plaintiffs in error.

The plaintiff and Hay being employed on the same common duty, were fellow workmen, and, in the absence of any negligence *53by defendants in the employment of Hay, they are not liable to the plaintiff for injuries caused by the negligence of Hay. 'It makes no difference that plaintiff and Hay were employed by different contractors. Plaintiff assumed the risk of the employment.

Jan. 7, 1889.

We had a right to discover from Dixon what he meant by “ special rights,” and, in the absence of.a contract, to prove a usage of the trade.

We should have been allowed, on cross-examination, to show, by the plaintiff, that his doctor’s expenses, etc,, were paid by a third party, after his -counsel had gone over ail his expenses, lost time, etc., in the examination-in-chief.

*W. D.*Moore, with him *F. C. McGirr,*for defendant in error.—

Hay and plaintiff were not under the control and direction of a common master and were not fellow servants. Shearman & Red-field on Negligence, § 100; Wharton on Negligence, § 231; Lewis *v.*Seifert, 116 Pa. 628.

Defendants’ offer to prove a usage of trade was irrelevant. But, even if such a usage were established, it would not justify the use of an unsafe scaffold.

Defendants'’ offer in the fourth assignment of error was properly refused. In North Penn. R. R. Co. *v.*Kirk, 90 Pa. 15, the court refused to allow the defendant to show that the plaintiff had a policy of insurance upon his son’s life and that the loss had been paid.

Per Curiam,

The scaffolding upon which the plaintiff was working was erected by C. G. Dixon & Co., the contractors for the brick-work, and was sufficient for their purposes. The defendant had a contract for the stone-work of the building and obtained the consent of Dixon & Co. to use the scaffolding to set it. It was clearly their business to see that it was strong enough for that purpose, and to strengthen it if it was not. It was alleged, upon the trial, and there was evidence in support of it, that the defendants were notified that the scaffolding was not strong enough for the heavy stone which they designed to place upon it. If, then, the defendants knew, or ought to have known, of the defect in the scaffolding, the plaintiff was entitled to recover for the injuries he sustained by reason of such defect, and the competency of the men employed by them is immaterial.

Nor was the usage of trade referred to in the third assignment of any importance. There can be no such usage as would justify the use of insufficient scaffolding.

Nor was it any concern of the defendants whether the plaintiff obtained a sum of money from the Bricklayers’ Union to pay his doctor’s bills and expenses.

Judgment affirmed.