I am unable to concur in the prevailing opinion. The negligence-of the defendant consisted in his furnishing, for the use of the plaintiff, an unsafe appliance — a scaffold. Its unsafeness consisted in its being narrow, without a railing, and made of lumber of insufficient thickness, or else not supported or fastened together so that it would not spring as a person walked upon it. It is fair to assume that the-plaintiff could see, and, inasmuch as he was a carpenter by trade, that he had some knowledge as to the construction of scaffolds and whether it was safe to work upon one which was narrow, without a railing and “ springy.” If he commenced his- work upon the scaffold without looking to see how wide it was, without taking any notice whether there was a guard rail to protect him in case he slipped or lost his balance, or whether it was improperly supported, he was guilty of contributory negligence; and if, on the other hand, he knew the condition of the scaffold when he went to work, then he must be deemed to have assumed whatever risks there were incident to the use of it in its then condition. (Nugent v. Brooklyn Union El. R. R. Co., 64 App. Div. 351; Shaw v. Sheldon, 103 N. Y. 667; Anthony v. Leeret, 105 id. 591.) That the plaintiff did know the condition of the scaffold when he went to work is apparent from his own testimony. The accident happened in broad daylight, and he testified that when he walked across the scaffold it was “ springy,” and he could not help but see the width of it and that there was no guard rail of any kind.
Nor do I think any error was committed by the trial court in excluding the answers to certain questions put to plaintiff’s experts as to whether the scaffold was a safe one to work upon. It was not for the experts to say whether the scaffold was safe, but for the jury after considering all the evidence laid before them bearing *351on that subject. (Dougherty v. Milliken, 163 N. Y. 527; Harley v. B. C. M. Co., 142 id. 31; Cramer v. Slade, 66 App. Div. 59, Kelpy v. Triest, 73 id. 597.)
I am of the opinion that the complaint was properly dismissed, and for that reason the judgment should be affirmed.
Yan Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.