The plaintiff has obtained a small verdict for personal injuries; received from the breaking of a scaffold on which he was working in the defendant’s employment on January 16, 1901. His work was to carry brick and mortar to masons who were engaged in building a chimney in the construction of a Queen Anne cottage. The chimney was nearly finished, the scaffold in question being near the top of it. The scaffold lacked one plank and the plaintiff was directed to bring up One — he says the only one which was left for that purpose — and to place it upon the supports. He did so, and then stepped upon the plank when it broke under him causing-him to fall some twenty-five or thirty feet.
The plank was taken possession of by the defendant on the day of' the accident and was received in evidence and exhibited to the jury on the trial. The defendant testified that it was then in about the same condition as when it broke, except that it had aged a little and the break did not look as fresh and bright as at first; and one of his witnesses, the one who had directed the plaintiff to use the plank,, testified that he would not consider a plank which was-split through in several places to be a proper, safe plank to use for scaffolding-purposes, and. admitted that the plank in question was so badly split at the time of the trial that you could see through it in places. Another witness for the defendant testified that he supposed th.e plank was split more at the time of the trial than at the time of the accident, and while conceding that it was not as safe as it-wou-ld have been if it had no splits in it, insisted that if was safe to use, and “ as good as they are, as a rule.” , Assuming that the burden rested. *3on the plaintiff to prove affirmatively the cause of the plank’s breaking it cannot be said that there was not sufficient evidence to justify the conclusion that the breaking in this instance was because of its obviously unsafe condition. If, as the plaintiff testified, he was directed by the person then apparently in charge of the job to bring up and place this particular plank in position, and there was at the time no other one available, the jury might very well relieve him from the imputation of contributory negligence.
Under the present state of the law the breaking of the plank unexplained would make a prima facie case of negligence on the part of the defendant. (McLaughlin v. Eidlitz, 50 App. Div. 518; Walters v. Fuller Company, 74 id. 388 ; 82 id. 254, 258; Wingert v. Krakauer, 76 id. 34; Johnson v. Roach, 83 id. 351; Stewart v. Ferguson, 164 N. Y. 553.) Section 18 of the Labor Law (Laws of 1897, chap. 415) imposes upon the master the duty of furnishing safe scaffolding for the use of his servants, and section 19 provides that such scaffolding shall be so constructed as to bear four times the maximum weight required to be placed thereon when in use. Referring to these provisions of the statute in the case of Stewart v. Ferguson (supra), the Court of Appeals held that equally whether the cause of the fall of a scaffold was or was not ascertained the law had the effect (p. 555) to “ 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.” The court further said (p. 556): “ Section 18 is a positive prohibition laid upon the master without exception upon account of his ignorance or the carelessness of his servants. The evidence tended to show that this scaffold was not overloaded, but was bearing the weight usually required in the performance of the labor for which it was an appliance. Prima facie it was so constructed as to bear less than onefou/rth the weight required by section 19. Its fall, in the absence of evidence of other producing cause, points to the omission of the duty enjoined by the statute upon the defendant to the plaintiff in its construction, and points to it with that reasonable certainty which usually tends to produce conviction in the mind in tracing events back to their causes, and thus creates a presumption. It is circumstantial evidence, and if it does convince the jury, it justifies their verdict.”
*4The brief of the learned counsel for the appellant presents no allegation of error in the charge of the learned court, the. point mainly contended for being that no negligence on defendant’s part had been established. The facts, however, seem clearly to establish a failure to comply with the statutory requirements, and that such failure could have been avoided by the exercise of ordinary care in the inspection of the material which proved defective. It follows that the judgment and order should be affirmed.
All concurred, except Woodward, J., who read for reversal, with whom Jerks, J., concurred.