(dissenting): I cannot see my way clear to concur in the conclusion reached by my associates in this court, nor in the reasoning by which such con elusion is reached. The accident in this case occurred before the passage of the Employers’ Liability Act (Laws of 1902, chap. 600), and I am persuaded that under a fair construction of the Labor Law (Laws of 1897, chap. 415, §§ 18, 19, as amd. by Laws of 1899, chap. 192) the plaintiff has failed to establish a cause of action. Taking the plaintiff’s own story, he was employed by the defendant as a mason’s helper,, two other men being employed upon the same work, which consisted at the time of the accident in constructing a chimney for a Queen Anne cottage. There is no evidence in the case that either of the masons had any authority over the conduct of the plaintiff, except that one of them assumed to tell him what to do. There is no evidence that the plaintiff owed any duty of obe- ' dienee to the orders of this mason, or that the latter had any authority to hire or discharge him, or that the defendant recognized this mason as in any manner representing him upon this work. So far as I am able to discover the defendant had no special representative upon this simple job of constructing- a' chimney; there were two masons and a helper, whose duty it was to co-operate in completing the work, with no one of them having any authority over the other. During the .construction of this chimney it had been necessary to construct and reconstruct a scaffold, and there is no question here in reference to the manner of constructing, for the accident complained of did not result from any fault in construction, but from the breaking of a plank thirteen feet long, two inches thick and *5twelve inches wide, which was being used in one of the reconstructed scaffolds and which the plaintiff says he was directed to use by Howard Imlay, the mason who assumed to give orders. This plank was in evidence in the trial court and no one was able to explain why the same should have broken. It appears from the evidence that this plank, so far as any tests which were suggested as being in vogue could determine, was just such a plank as was in common use for this kind of work and that it was practically a new plank without defects calculated to weaken the same. The plaintiff testified that he aided in reconstructing the scaffold as it became necessary from time to time, and that at about the time of this accident the three men had been engaged in constructing a secondary platform to enable the masons to reach the top of the chimney ; that he had been directed by Imlay to make use of the particular plank which subsequently broke, and that he had picked the same up from the ground and handed it up to the masons above him who placed it in position; that when he stepped upon the platnk it broke and he fell to the ground.
Where is the negligence of the master in this case % No scaffolding or other mechanical contrivance broke or fell, if we assume that under the provisions of sectiofi 18 of the Labor Law it was the duty of the master to construct and reconstruct a safe scaffolding. A plank which had every appearance' of being sound, and which even the investigation of the trial failed to show was defective in any particular which could have been discovered by the exercise of any reasonable care on the part of the master, broke and the plaintiff was injured, but something more than this is necessary to establish negligence. The duty of the master to use reasonable care to furnish safe materials and appliances does not require that he should subject every plank, every stick of timber, every bolt and every nail to an actual test under a given strain ; this duty is satisfied by taking the degree of care which a reasonably prudent man would or should use to protect his own life and limb under the same circumstances, and the evidence in this case is that the plank which was furnished and which the plaintiff himself, with several years of experience in similar work, handled, was just such a plank as would be used by any one of the'witnesses called, and that it did not disclose, even after the, break, any latent defects which a reasonable inspection would *6have disclosed to the master. Indeed, it appears‘to have been conceded that this plank, under the careful scrutiny which it subsequently underwent, failed to disclose1 a condition which accounted for its breaking, and the plaintiff having himself handled the plank and assisted in placing it upon the platform was in as good a position as any one to discover the defects if they existed.
Unless, therefore, there was a duty resting on the master tó furnish a scaffolding which was absolutely safe in all its details under all circumstances, it is difficult to see wherein the master has failed in any duty which he owed to the plaintiff. Section 18 of the Labor Law changes the common-law rule to some extent, and it is, perhaps, too late to suggest the proper construction, limiting it to the exact language used, and making no greater change than its language requires, (Rosin v. Lidgerwood Manufacturing Co., 89 App. Div. 245, 247, and authorities there cited.) This section provides : “ A person employing or directing another to perform labor of any kind in the election, 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, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or impropér, 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.” Does this contemplate anything more than that where the master undertakes to furnish a scaffolding, or where it is his duty to furnish a scaffolding, he shall use reasonable care to see that the same is safe % Is there any duty resting upon him to make it absolutely safe, regardless of defects in materials which he could not discover by the exercise of any reasonable degree of care % I think the law is not to be construed as requiring more than this, for it is not to be presumed that the Legislature intended to deny the equal protection of equal laws to any citizen of this State, and reasonable care is all the law has a right to exact of any one in his ordinary relations with his fellow-men, having in mind the obligation to use care commensurate with the dangers to be anticipated from a failure to perform the duty.
If the duty is that of reasonable care, can it be that when the master has provided materials which are safe, fit and proper for the construction of a scaffolding, so far as any inspection of them which *7is reasonable and practicable will disclose, and it becomes necessary, in the course of the work, to reconstruct that scaffolding, that the master owes the duty not only of properly reconstructing such .scaffolding, but of guaranteeing that every ' plank will hold all of the weight which may be put upon it ? There is nothing in the statute which requires every plank to be absolutely safe; the requirement is that the master “ shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are ■unsafe, unsuitable or improper,” and the evidence in this case, aside from the fact that this plank did break, fails to show that the defendant did “ furnish or erect, or cause to be furnished or erected,” any unsafe scaffolding. The scaffolding, as a whole, was perfectly safe; the single plank which broke, so far as could be discovered by anything short of an actual test, was a safe and suitable plank for the purpose, and it seems to me that there was no ground of negligence ^established.
Jenks, J., concurred.
Judgment and order affirmed, with costs. '