Opinion
July, 1914.
The statement of the assistant foreman coming away from the window some two minutes after Nelsen fell was inadmissible. It was a narrative of a past event made to Michaelson, and was not a qualifying declaration impelled by the fall of the decedent, and as it were, interpreting it. ( Waldele v. N.Y.C. H.R.R.R. Co., 95 N.Y. 274; Butler v. Manhattan R. Co., 143 id. 417, 423.) The decedent was directed to construct for his support at the eighth story a simple scaffold made of a plank placed across two cleats nailed to upright joists. He, directed not to cut whole boards for the purpose, selected, as plaintiff contends, from whatever material there was a yellow pine board eight inches wide and one inch thick and ten feet long, to bridge an opening eight feet wide. It had a knot where, as contended, it broke. Such a board was improper. It is urged in excuse for his failure to discover the break that the board was covered by lime. But that would not have excused the master in an action based on his negligence, and no more does it exculpate the servant deputized to act for the master. If there was concealing dirt, the greater the need of scrutiny. Moreover, it does not appear that the board was in that condition on the side where the decedent stood. The finding of the jury that the decedent was free from contributory negligence, and that he did not assume the risk of the board selected, is against the weight of the evidence. The judgment and order should be reversed and a new trial granted, costs to abide the event. Burr, Carr, Rich and Stapleton, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.