The evidence is quite meagre upon two subjects which seem to me to be vital in this case. If the plaintiff was employed to work upon the construction of the several buildings, in connection with all the other carpenters employed by the defendant, either singly or in connection with the others, then lie must be treated as a co-servant of all who were employed upon tliq work, in which event the negligence of one or more of such employees would be the negli*312gence of a fellow-servant, and he would be chargeable with, such negligence in the erection of the scaffold which fell. There is some evidence "which would warrant an inference that he was engaged in a separate employment, distinct from the other men employed, and, if so, then I think he would not be chargeable with their negligence; But he cannot so escape unless his employment was separate and "distinct. If the course of employment delegated to one or more certain specific portions of the work,, and to one or moré certain other portions, then- I think it must be said that they were all engaged in a common employment, and the negligence of one or more would be the negligence of a fellow-servant.- While the ¡Taintiff testifies that he was engaged in a separate employment upon another building, and took no part in the construction" of the scaffold, it does not necessarily follow, that he was engaged in an employment separate and distinct from the other men, as this is consistent with a common employment for a common end. It is also consistent with a separate and distinct employment disassociated from the others. If it were the latter, I should be disposed to hold that as the scaffold was built under the direction of the defendant, and was completed . when the plaintiff was directed to go upon it, and its defects- were not visible and open, it would be regarded as a place to work and not a detail of the work, in which event it would be brought within the doctrine of Kranz v. The Long Island R. Co. (123 N. Y. 1), and for the negligence of the employees erecting he would not be chargeable. It seems, however, from all the evidence and the findings, that the trial proceeded upon the theory that the plaintiff was engaged in a common employment with the other -men, in which case the rule above noted would not apply. I reach this result with some hesitancy, and for the reason that it was devolved.upon the plaintiff to show clearly what his attitude was in this respect. This may be made clear upon another trial and permit of the application of the rule, if it ought to be applied. '
The second question relates to the plan of construction. If the structure fell by reason of an inherent- defect in the plan, or if it fell by reason of negligence "in construction, or the use of unfit material, concurring with a defective plan of construction, then the defendant would be liable for the injuries sustained. Upon this point, however, the evidence is not sufficient to permit us to say *313that there was a defect in the plan of construction. ' While there is some evidence tending to show a faulty plan, yet it is not sufficiently certain and definite to enable us to support the judgment thereon. This question, like the other, may be made sufficiently strong to uphold a recovery in favor of the plaintiff. It is not so sufficient upon this record.
I, therefore, concur in the view that the case is one for a reversal of the judgment.
Judgment reversed and new trial granted, costs to abide the event.