The action is by servant against master for negligence. The master was putting up an iron and steel building, and a structure upon which the servant was working sagged or canted so that the servant lost his balance and fell from the height of four or five stories. The jury found for the plaintiff and the defendant appeals. The case was tried on the theory that the master was liable under section 18 of the Labor Law.
I think that the structure was a scaffolding within the purview of this section. Perpendicular columns had been set up, and the structure was a beam of timber fifteen or twenty feet long, three or four inches thick and twelve inches wide, hung from one perpendicular column to another, and lashed to them by ropes. The plaintiff testifies that before the wall was built, this structure was necessary for the iron girders to rest upon; that it was a scaffold to walk across, and for the beams to rest upon ; that it was intended to be used in placing the iron girders at proper intervals — “ to walk on and space them at a right distance; ” that it was there for the workmen to walk on to release the sling, and that there was no other way in which he could do it. He is essentially corroborated by several witnesses. Lord Brampton in Hoddinott v. Newton, Chambers & Co., Ltd. (L. R. App. Cas. [1901] 49) adopts and approves language of Rigby, L. J., in Maude v. Brook (L. R. [1900] 1 Q. B. Div. 575), which is pertinent to this case. This fabric was a “ temporary structure upon which workmen (stood) in erecting the walls of a building,” and thus within the definition of a scaffold in the Century Dictionary, as well as “ a platform temporarily erected during the progress of a structure for the support of workmen and material,” and thus meets the definition in Knight’s American Mechanical Dictionary.
There was evidence which warranted the finding that the plaintiff went upon a completed structure. For he testifies that it was lashed — it was tied or lashed around the girders. Miller and Olsen, the *249servants of the defendant, did the lashing at the ends respectively. The plaintiff testifies that he “ gave Miller a hand to lash it, and then went over in the center to take the sling off,” but before going upon the structure he looked over to Olsen’s end, which was the further end, to see whether he had it tied; it was tied; that after that Cooper, who had charge of the immediate gang, asked Olsen whether it was “ all right; ” Olsen answered “ yes; ” and that thereupon, under Coopers order, he went out upon the structure. Plaintiff’s witness Pettorine testifies that after the plaintiff fell from the structure it was still tied, but “ looked a little bit sideways.”
There was evidence to sustain a finding that the plaintiff, at the time of the accident, was about his master’s work. The plaintiff testifies that Cooper told him to take the sling off, and also to give Olsen a hand on some beams which were to be prepared to be set. Cooper admits that he sent the plaintiff to give Olsen a hand, but at first testifies that he does not remember telling him to take off the sling as he crossed the beam, and then that he did not tell him to do it. Cooper testifies first that there was no sling on, but afterwards that there was a rope which answered that purpose. The defendant’s witness, Olsen, testifies that there was a sling very near the center of the beam. I dwell upon this feature of the testimony because the plaintiff testifies that Cooper told him to release the sling, and that there was no way to do this save by walking out upon the structure.
There was evidence which warranted a finding that this scaffolding was not placed or constructed so as to afford proper protection. The plaintiff testifies that it sagged and canted about six inches so as to throw him off. He is corroborated as to the sagging by his witnesses, Haley and Shebill, and by defendant’s witness Cooper. True, the defendant’s witness Olsen testifies that his end was not lashed at this time, but that he was engaged in lashing it, having one turn around it, but he further testifies that the lashing used was a rope about twenty feet long, three-quarters of an inch thick, and that “ it was wet and stiff, but otherwise a good rope for the purpose.” If the jury credited the testimony of the plaintiff that Olsen’s end was tied, that Olsen told Cooper that it was “ all right,” and of his witness Pettorine, that after plaintiff fell the scaffold was *250still tied, but “ looked a little bit sideways,” it was justified in finding that it was improperly tied by Olsen, or was tied by a rope that was “ wet and stiff, but otherwise a good rope for the purpose.” I think that the tying to an iron column, by a “ wet and stiff, but otherwise a good rope,” may account for the sagging or wobbling of the beam after the plaintiff stepped upon it.
There was evidence to justify the finding that the scaffolding was furnished or erected or caused to be furnished or erected by the master. Class, the general foreman, testifies that he saw the timber, and knew it was being put up. Defendant’s witness Olsen testifies that Cooper, the foreman of his gang, directed him to lash the end of the timber. Cooper testifies that he was engaged in lashing the beam when Welk came up. Olsen and Miller, who were at work lashing the ends, were both servants of the defendant.
I think that the jury, then, were justified in holding the master liable under section 18 of the Labor Law, on the ground that he was responsible for the safety of the scaffold and for the want of care in the details of its construction (Stewart v. Ferguson, 164 N. Y. 553) “ without exception upon account of his ignorance or the carelessness of his servants.” (Ibid.; Tierney v. Vunok, 97 App. Div. 1.)
It cannot be said as a matter of law that the plaintiff was chargeable with contributory negligence. He was an iron worker by trade. The scaffolding was apparently lashed and tied at both ends, for the plaintiff looked over at the other end and saw that it was tied, and he heard Olsen assure Cooper that it was “ all right ” before Cooper told him to proceed upon the scaffold. Nothing shows that in the exercise of due care he could foresee that the further end was so insecurely lashed or tied as that it would sag or wobble if one walked upon it. Olsen says that the rope was wet and stiff, but otherwise a good rope for that purpose. Nor does the mere fact that the plaintiff assisted Miller in lashing an end, if he did so, make him guilty of contributory negligence as a matter of law. (Wingert v. Krakauer, 76 App. Div. 34.)
The plaintiff lay in the hospital unconscious for two weeks and remained there for two months. He then walked upon crutches for three months, and did not return to any kind of work for six months. His strength is impaired, his eyesight is affected, and he cannot now work save in a different field of labor. His physician testifies that *251he had a fracture of the tibia, fracture of both wrists, and fracture of the skull and that there is almost a total loss of sight of one eye. He also testifies that though there is a very good union, the left wrist is permanently injured and deformed, and the other partially S3; his leg is permanently deformed and permanently injured, and it will always be the cause of suffering, and there is a partial paralysis of the optic nerve. No testimony is offered by the defendant on the subject of the injury. We cannot say that the verdict of $9,000 is excessive.
The judgment and order should be affirmed, with costs.
All concurred, except Woodward, J., who read for reversal.