GAYNOR, J.:
Section 18 of the Labor Law (Laws of 1897, chap. 415) provides that the employers of persons to labor "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 was, therefore, a question of fact for the jury whether the defendant's method or system of placing and securing the hoist was a safe one. The plaintiff did not devise such method; he only helped in carrying it out. It was for the employer to adopt a safe method or system, and that duty could not be evaded by delegation. Not only is the said statute in the way of such delegation, but that was the rule before the statute was passed. And the fall of the hoist while being properly used for the purpose for which it was set up was of itself evidence that it was unsafe, and brought the case within the maxim that the thing speaks for itself ( Stewart v. Ferguson, 164 N.Y. 553).
The objection that the statute cited in the foregoing was not available for not being pleaded in the complaint is founded on a mistaken notion. It did not need to be pleaded; it would not be scientific to plead it. The cause of action is not on a statute. All that the statute does is to make the employer liable for unsafe scaffolds, hoists, etc., even though they be negligently put up by fellow-workmen of the plaintiff as part of their work, whereas before the statute he was not; in other words, it makes evidence competent to show his negligence which was not competent before.
The judgment should be reversed and a new trial granted.
WOODWARD, JENKS and RICH, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.