#### John Convey, Appellant, *v.*John T. Finn and Patrick W. Finn, Respondents.

First Department,

February 5, 1909.

Master and servant —■ injury by defective scaffold — facts raising issue: for jury — when structure is scaffold within section . 10 of Labor Law—• presumption where scaffold breaks.

Action against a master to recover for injuries received by the breaking of a scaffold erected over the hallway of a building under construction. Evidence examined, and /¿sZd,. that a verdict based on a finding that it was not part of the plaintiff’s duty to construct the scaffold was warranted 'by the evidence and that it was error to set it aside.

A board laid across stringers over the stair opening of a building under construction to enable a kodcamer to deliver material to masons is a scaffold within the meaning of section 18 of the Labor Law.

A master who-uses a board only three-fourths of an inch thick and eight inches, wide as a scaffold to bridge such opening is properly charged with a violation of the Labor Law, where the evidence shows that planks two inches in thickness were customarily used under the circumstances.

Moreover, in view'of the provisions of section 18 of the Labor Law, the breaking of such board, in the absence of explanation, raises a presumption of negligence in the construction of the scaffold.

Appeal by the plaintiff, John Convey, from an order of. the Supreme Court, made at the blew York Trial Term and entered in the office of the clerk of the county of blew York on the 18th day ■of March, 1908, setting aside the verdict of a jury in favor-of the plaintiff for $1,500 and granting a new trial.

*Alfred Steckler [Levin L. Brown*with him on the brief], for the appellant.

*John T. Canavan,*for the respondents.

Laughlin, J.:

We are of opinion that tlie verdict should be reinstated. ' On the 18th day of July, 1905, the defendants, who were masons and builders, were engaged in constructing new apartment houses on premises known as bios. 7 and 9 Gleneda place, Brooklyn, and plaintiff was in their employ, and had been working on the job three or four months as a laborer, carrying mortar and wheeling *441brick to the masons. The walls had been constructed and the flooring evidently had been laid in the rooms, but not in the hallways, and the stairs had not been built. The principal work of the masons had been finished, but some interior mason work remained to be done in different rooms. The plaintiff had, for the most part, been engaged in bringing brick and mortar to a particular mason as the work progressed from floor to floor, and on the day in question this mason was working in a room near an open hallway on the fifth floor, and the plaintiff was engaged in the performance of his duty in bringing mortar tó him. He was obliged to bring the mortar on a hod from the ground by joist ladders, and then to pass from the room on the fifth floor, into which lie stepped from the ladder onto a scaffolding constructed over an open hallway, and then back from the scaffolding into a smaller room on the same side of the hallway. It appears that the hallways were four feet eight inches in width, and were open and uncovered —save scaffoldings — from the basement to the top of the building. On the opposite side of the hallway to that from which the plaintiff approached it in passing from the ladder there was a doorway into another apartment. A scaffolding had been constructed over the hallway at this point, consisting of a stringer two inches by four inches, extending from the doorway through which the plaintiff on leaving -the ladder entered the hallway into the doorway across the hallway, and a similar stringer from the doorway entering the smaller room where the mason was at work to the doorway across the hallway into, which the other stringer extended, the two thus joining in the form of the letter V, and then a board three-quarters of an inch in thickness, about eight inches in width and four or five feet in length, was extended across the top of these two stringers parallel with the sides of the hallway like the mark across the' capital A. The plaintiff had made one trip, bringing mortar to the mason in this room on the fifth floor, passing over this scaffolding, and was returning to the ground with an empty hod on his shoulder, to bring more mortar. In passing from the room in which the mason was working, he stepped upon the board resting on the two stringers and it broke into two parts, precipitating him to the floor below, whereby he received injuries which fairly sustain the amount of the verdict, provided the plaintiff was entitled to recover.

*442The plaintiff testified that similar runways were constructed over the hallway on the different floors of the building for the use of the workingmen. • The evidence adduced by the defendants tends to show that scaffolding was built over the hallways but it indicates that scaffolding on the other floors consisted of a single plank two inches in thickness and twelve inches in width, thrown across the hallway. The evidence presented in behalf of the defendants can scarcely be said to controvert the testimony of the plaintiff and his witnesses with respect to the construction of the scaffolding of the fifth floor. It appears that no one in behalf of the defendants examined the broken board after the accident, to see what were its dimensions and what was its condition and none of defendants’ witnesses saw it before or testified with respect to the scaffolding that had ¡been constructed on the fifth floor. Evidence was also adduced in behalf of the defendants, tending to show that it was part of the duty.of the plaintiff to construct scaffolding and that he had been directed to construct a scaffolding for his own use and the "use of others at this particular point on the fifth floor and to use for that purpose a sound plank two inches thick and twelve inches in width. That testimony, however, is expressly controverted by'the plaintiff and he also produced a witness who had been in the employ of the defendants and who testified that he constructed this particular scaffolding and all scaffolding over the hallways in the same manner, using in each instance a board across the stringer only three- ■ quarters of an inch in thickness and that this was done under the direction of the superintendent of the defendants.

The court instructed the jury, in effect, that if they found that it was the duty of the plaintiff himself to construct the scaffolding, he could not recover. It must be assumed, therefore, that the jury believed the testimony of the plaintiff and that it was no part of his duty to construct the scaffolding. That was a fair question of fact on the evidence with the probabilities tending to support the verdict, for concededly defendants had special scaffold builders oh the job,; and it cannot be said that it so preponderated in favor of the defendants that the trial justice was warranted in setting aside the ■ verdict. The structure which gave way is spoken of by the witnesses as a scaffolding and it evidently was quite as much of a scaffolding as if it had been erected on the outside of the building. *443It, therefore, came within the provisions of section 18 of tlié Labor Law (Laws of 1897, chap. 415) which provides, among other things, as follows:

> “ A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.”

It is not pretended that it was proper construction to use a board three-quarters of an inch in thickness and eight inches in width for men to walk upon over an opening óf this kind, and the evidence indicates that planks two inches in thickness are customarily used in such circumstances. Moreover, in view of the provisions of section 18 of the Labor Law, the breaking of the board, in the absence of explanation, justifies the inference of negligence in the construction of the scaffolding. *(Lentino*v. *Port Henry Iron Ore Co.,*71 App. Div. 466; *Madden*v. *Hughes,*104 id. 101; 185 N. Y. 466 ; *Tierney*v. *Vunck,*97 App. Div. 3.) It does not appear by the record that any errors prejudicial to the defendants were committed on the trial.

It, therefore, follows that the order should be reversed, with ten dollars costs and disbursements, the verdict reinstated and motion for a new trial denied.

Patterson, P. J., Ingraham, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, verdict. reinstated and motion for new trial denied.