BERTHELSON v. GABLER

PER CURIAM:

The plaintiff was injured by the fall of a scaffold upon which he was at work for the defendant. The scaffold was actually constructed by the plaintiff and his fellow-workmen, all of whom were in the defendant's service. The evidence leaves no doubt that, as originally constructed, the scaffold was safe for the use of the persons employed upon it. The structure was rendered unsafe by the subsequent removal, in part or in whole, of a brick pier forming a portion of the building under repair. This brick pier gave some support to a joist which formed a part of the scaffold; and the removal of the pier, according to the testimony adduced in behalf of the plaintiff and the fair inferences to be drawn therefrom, so weakened the scaffold as to cause it to fall.

The pier was removed at the instance and by the direction of a person in the service of the employer intrusted with and exercising superintendence over the work within the meaning of subdivision 2 of section 1 of the Employers' Liability Act (Laws of 1902, chap. 600). Hence the plaintiff is not barred from maintaining the action on the ground that his injuries were the result of negligence on the part of a fellow-servant.

Because of the fact that the scaffold was actually put up by the plaintiff and his fellow-carpenters, the learned trial judge was of the opinion that it was not furnished by the defendant within the meaning of the Labor Law (Laws of 1897, chap. 415, § 18). In reaching this conclusion we think he adopted too narrow a view of the testimony given by the defendant's superintendent, which indicates that he gave directions as to the manner of its construction. The proof, as we look at it, tends to show that the defendant, in the first instance, discharged his absolute duty to furnish a safe scaffold. The obligation, however, was a continuing duty, and the principal question in the case was whether that duty was fulfilled during the entire period in which the scaffold was used. ( Walters v. Fuller Co., 74 App. Div. 388, 393.) This was a question of fact which the learned trial justice properly left to the jury. There was evidence sufficient to warrant their finding of negligence in this respect in the proof that the superintendent was present at the work after the scaffold was completed, and that he personally directed the removal of the old front of the building, in doing which the center pier, which partly supported the scaffold, had to be removed.

The question of contributory negligence was also properly submitted to the jury. (See Employers' Liability Act [Laws of 1902, chap. 600], § 3.) It did not follow that the plaintiff was guilty of contributory negligence as matter of law, because he had heard an order given by a foreman to a fellow-workman to take down the pier. According to his testimony he was away from the work for several hours and did not notice that the pier had been removed when he returned to the scaffold, or until after he was hurt. Even if he had observed that the pier had been taken down, he was entitled to assume that the defendant had discharged his continuing duty to keep the scaffold safe, unless the defendant's omission to do so was obvious and patent to the senses or actually known to him.

In view of the provisions of the Labor Law and of the Employers' Liability Act, we are of opinion that the plaintiff made out a case entitling him to go to the jury. We are unable to agree with the learned trial justice that the verdict was against the weight of evidence, nor can we find any legal error which will sustain the order for a new trial. That order should, therefore, be reversed, and the verdict should be reinstated.