Upon the trial the complaint in this action was dismissed against the defendant Rodgers, and the jury found a verdict against the Edge Moor Bridge Works, appellant. The appellant had a contract to do the iron work of a bridge across the Harlem river known as the Willis Avenue bridge. The masonry piers had been built, and in order to erect the iron superstructure upon these piers the appellant caused to be built a timber structure which rested upon piles •driven in the bottom of the river and extending from pier to pier. While this timber structure, which was to be used as a scaffold for the erection of the permanent iron structure, was in course of erection, it collapsed, and the plaintiff’s intestate, who was engaged with ■other workmen in building this temporary structure, was killed.
It seems to me that the principle applied in cases where the master has failed to furnish for his workmen a safe scaffold for use in their work does not apply ; for here no scaffold was furnished, but the accident happened while the workmen were engaged in erecting a scaffold which when completed was to be used by the appellant’s workmen in the construction of the permanent structure. The negligence charged against the appellant was that proper piles were not supplied to support this structure and that the structure was not sufficiently braced to sustain the weight of a traveler — which appeal’s to have been a derrick which was run out on the temporary structure as it advanced, to raise the timber used for the erection of the temporary structure. The negligence claimed as to the piles was that they were too short and were not properly driven; but the evidence shows, I think, that the accident was not caused by improper piles, as the piles themselves were broken off instead ■of being pushed out of position, which would have been the case if they had been improperly driven or - not of sufficient length. There was evidence tending to show that the particular portion of the structure upon which this traveler rested at the' time of the accident was not sufficiently braced, and that in consequence of this absence of bracing, the structure above the piles broke.down ; and •the question as I view it is,.whether or not the appellant was liable because those in charge of the work attempted to proceed too fast by using this traveler before the structure had been properly braced.
An entirely different question would have been presented, it *88seems to me, if this structure had been completed and the appellant bad allowed" its employees to use it when at work in constructing the bridge. That is the condition to which the case of Davidson v. Cornell (132 N. Y. 228) applied. The plaintiff who was there injured was employed in building á railroad, and the court in describing the accident says: “ The structure, called the traveler, containing the engine, boiler and other appliances, was moved on the girders from one crossbeam to another, having the weight of ten to twelve tons, and required a substantial support. In this instance, for some cause; it is said, the girders swayed as the traveler was moving along upon them, and they, with it, fell to the ground. There-was no lateral bracing placed between the girders before this weighty structure called the traveler was moved over them. Uor were the ends at the bottom bolted. * *. * There was evidence tending to prove that the bracing would have added materially to the stability of the girders, to the support of the traveler, and to the safety of the employes engaged upon it; and that such bracing is usual in like cases in other work; also that bolting the girders at the bottom as well as at the top would have essentially aided in keeping them in the position in which they Were placed. The conclusion was warranted, that the situation in which the girders were when the platform conveying the engine, boiler and other' implements was moved over them, was such as to be deemed in defective condition for such use and purpose.” In that case "the question of the defendant’s liability does not seem to have been determined, as the case was reversed upon the question of evidence and a new trial was ordered-. "The only question that the court discussed, other than that upon which the judgment was reversed, was as to whether the plaintiff assumed the risks incident to the work that he was about to do, but this question was apparently not determined, the court saying: “ Those (the risks) not obvious assumed by the employe are such perils as exist after the master has used due cafe and precaution to guard the former against danger. And the defective condition of structures and appliances which, by the ■exercise of reasonable care of the master, may" be obviated, and from the consequences of which he is relieved from responsibility to the servant by reason of the latter’s knowledge of the situation, is such as is. apparent to his observation.”
*89The late case of Stewart v. Ferguson (164 N. Y. 553) presents a case of a scaffold furnished by the master to his employees to work upon, and it was there held that sections 18 and 19 of the Labor Law (Laws of 1897, chap. 415) enlarge the duty of the master or employer and extend it to responsibility for the safety of the scaffold itself, and thus for the want of care in the details of its construction, but sections 18 and 19 of the Labor Law apply only to a scaffold furnished or erected for the performance of labor in the erection, repairing, altering or painting of a house, building or structure. Here the plaintiff with other workmen of the appellant was engaged in erecting the scaffold, and it was because of a collapse of the scaffold in the process of erection that the accident happened ; and what was said in Kimmer v. Weber (151 N. Y. 420) would seem to me to apply to this casé. There the scaffold was being constructed. “ The crosspieces, or some of them, seem to have been heavy pieces of timber, and on the day of the accident two of the workmen were engaged in putting one of these timbers in place. While so engaged one of the men let fall the end of the heavy timber that he was holding and it crushed by its sudden fall and broke one of the crosspieces of the plumbers’ scaffold. This causéd the whole scaffold to fall, resulting in the injury and death of the plaintiff’s intestate. The accident was evidently caused by the neglect of the workmen who were handling the timber or by some defect in the crosspiece of the plumbers’ scaffold. If the accident is to be attributed to the act of the workmen who were engaged in putting the timber in place, there is nothing in the case to show that the defendants are liable for the misconduct. They were co-servants, and nothing appears to charge the defendants with negligence either in employing them originally or in retaining them. It is not suggested that the judgment can be upheld on such grounds.” The court, further discussing the relation of the plaintiff’s intestate to the other employees, stated : “ The master is not responsible for the negligent performance of some detail of - the work intrusted to the servant, whatever may have been the grade of the servant who executes such- detail. If it is the work of the servant and he volunteers to perform it, and the master is not at fault in furnishing proper materials, there is no breach of duty on *90the' part of the latter.” This seems to me to present the exact case now before us. The plaintiff’s intestate was engaged in the construction of this scaffold. Other employees of the appellant who were his fellow-workmen were engaged with him in the erection of this scaffold. By their negligence ■ this traveler was placed upon a' portion of the structure not sufficiently braced, and in consequence of that negligence the structure gave way and the plaintiff’s intestate was killed. It seems to me that this was the negligence of a fellow-servant and not the negligence of the master, and for that reason I do not think that the appellant can be held liable.