Opinion
November, 1908.
James B. Henney, for appellant.
Louis A. Valente, for respondent.
The plaintiff recovered below in a common-law action for injuries sustained, while in the employ of the defendant, from being precipitated into a trench by the breaking of a plank upon which he was standing and lowering molten lead to caulkers below. Picking up the first plank that he thought would suit his purpose — a plank in which "you couldn't see the grain; it was all mud," as plaintiff testified, which he made no attempt to brush off, although, according to the testimony of the superintendent of construction, there was any amount of plank around there, from two to three thousand feet of lumber all the time — the plaintiff placed it across the trench, "jumped on it to see if it was sound" and began to use it for the purpose of a temporary or makeshift platform. Aside from any question of negligence on his own part the plaintiff, in order to recover, must predicate his cause upon the failure of his master to perform a duty by law imposed. No duty on the part of the master to furnish a platform herein appears; all duty thereto appearing to be to furnish reasonably safe and suitable appliances for the prosecution of the work. The initial obligation the master is shown to have performed, in that it furnished sufficient quantity of plank from which a proper selection might have been made. Had a coworker selected an improper plank the plaintiff might not have held the defendant liable (Vogel v. American Bridge Co., 180 N.Y. 375), and no more where he himself makes the selection. The judgment should be reversed and a new trial ordered.
GILDERSLEEVE and SEABURY, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.