At the commencement of this action section 18 of the Labor Law (Laws of 1897, chap. 415) provided: “ A person employing or directing another to perform labor of any kind in the erec*347tion, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected, for the performance of such labor, scaffolding * * * which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” In Stewart v. Ferguson (164 N. Y. 553) it was held that this section “ is a positive prohibition laid upon the master, without exception upon account of his ignorance or the carelessness of his servants; ” that this provision enlarges the duties of the master or employer and extends it to responsibility for the safety of the scaffold itself, and thus for want of care in the details of its construction, and a violation of the provision of this law by a master which resulted in an injury to an employee is evidence of negligence which is sufficient to sustain a verdict of the jury that the employer was negligent.
In this action the scaffold did not fall, and so far as appears was sufficient to sustain the weight of the plaintiff while engaged in the work that he was directed to do. He testified that while working upon the scaffold he noticed that the boards of which it was constructed were springy and that they were not nailed; that the scaffold sprung more when he stepped upon one board, but that all the boards were springy; that after he had worked on the scaffold for some time he had to trim up the shingles as he placed them upon the building; that there was a knot in one shingle and in order to cut through it he had to press upon it; that as the chisel that he was using went through the knot, the spring of the scaffold threw him up and caused him to fall, from which he sustained severe injuries. And his testimony as to the condition of the scaffold was corroborated by a fellow-workman who, after the accident, went upon the scaffold, and who testified that he noticed that the boards of which the scaffold was constructed were hemlock seven-eighths of an inch thick ; that as he walked he noticed that the boards were springy. The plaintiff then called a witness who testified that he had been a carpenter for twenty years; that he understood the nature and strength of various kinds of wood; that he had built scaffolding ; that he had used pine wood, oák, chestnut and hemlock. A hypothetical question was then put to him which, after reciting the facts testified to as to the construction of this scaffold, asked : “ In *348your opinion, is a scaffold so constructed a safe and proper place on which a workman may work ? ” He was then asked, “ State what in your opinion and from your experience is a safe and suitable way to construct a scaffold % ” Another witness was called who testified that he had been a carpenter for more than twenty years and had to do with the various kinds of wood in his business ; that he knew the nature of hemlock wood. He was asked, “ Is not hemlock a very springy wood, liable to give with pressure and to spring up when the pressure is removed ? ” “ Is a scaffold built out of hemlock wood so arranged that there are three planks of hemlock wood resting on supports nine feet apart, the wood being. •§• inch thick, a safe and suitable scaffold for a man to work upon, weighing about 120 pounds % ” “ What is * * * the usual and customary method of constructing scaffolds in the State of New York ? ” He was also asked if there was a general custom as to the building of scaffolds in New York by contractors for carpenters to work upon. All these questions were objected to by the defendant, the objection sustained and exception taken by the plaintiff. At the end of the plaintiff’s case the complaint was dismissed.
The exclusion of this testimony was, I think, error that requires a reversal of the judgment. The duty imposed upon the defendant in furnishing this scaffold upon which the plaintiff was directed to work was to furnish a scaffold which was safe, suitable or proper, and so constructed as to secure proper protection to the life and limb of the person employed to work thereon. The jury was j ustified in finding fmm the testimony that the injury to the plaintiff was caused because of this springy condition of the scaffold which caused him to fall, and the question whether this scaffold was an unsafe, unsuitable and improper scaffold was the question upon which the defendant’s liability depended. The mere fact that the scaffold was springy, without other evidence to show that it was an unsafe, unsuitable and improper scaffold for the use of the plaintiff, was not, I think, sufficient to justify the jury in finding that the defendant had failed in this duty imposed upon him; but in view of the last decision of the Court of Appeals upon this subject, I think expert testimony as to whether or not this scaffold was unsafe, unsuitable and improper was competent. This question was exhaustively examined in Finn v. Cassidy (165 N. Y. 584), and I think that decision is sufficient to *349j ustify the in trod notion of this evidence. J ndge O’Brien, in delivering the opinion of the court, quotes with approval the rule stated in 1 Greenleaf on Evidence (16th ed. § 441b) that in practice opinions are receivable from persons having special skill, whether the data in question have been personally observed by them or are stated to them, whenever that special skill enables them, better than the jury, to draw inferences on the subject; that in such a case the witness is not attempting to decide the issue and thus usurp the jury’s place, but merely to give evidence which they may or may not accept. “ It is sometimes said that an opinion is not to be offered on ‘ the very issue before the jury.’ But this, as once remarked, would rather ‘ seem to be a very good reason for its admission.’ If the witness can add instruction over and above what the jury are able to obtain from the data before them, it is no objection that he refers to the precise matter in issue.” And the court also cites with approval Prendible v. C. R. Mfg. Co. (160 Mass. 131), where it was said : “We are of opinion that a person who has made a special study of the strength of materials and the proper mode of building structures to sustain weight may be allowed to give his opinion as to whether a staging erected in a specified way can safely be trusted to carry a particular load.”
Here the question was as to whether this scaffold was constructed so as to be an unsafe, unsuitable and improper scaffold under the particular circumstances, considering its situation and the use to which it was to be put. If it had been proved that this scaffold was not constructed in the ordinary way in which scaffolds are constructed, and that in the opinion of those who have made a special study of the construction of such scaffolds it was not a safe and proper structure, there would then have been, I think, a question for the jury as to whether the defendant had complied with the duty imposed upon him by the statute; and if he had not, the question as to his negligence and whether the plaintiff assumed the risk incident to the use of the scaffold would have been for the jury. It is quite evident that an ordinary jury, not familiar with this kind of work or the use of materials usual and proper in the construction of such a scaffold, without this expert opinion, would be unable intelligently to pass upon the question. The mere fact that the boards were springy and that the plaintiff fell was not sufficient to *350justify a finding that the scaffold was an unsafe or improper scaffold, but the jury could not intelligently pass upon that question without some special familiarity with the nature of those materials and the-usual method of constructing such a scaffold.
I think that the exclusion of this evidence was error which requires a reversal of the judgment, and I, therefore, concur with Mr. Justice Patterson in the conclusion at which he has arrived.