The details of the construction of the staircase and its condition at the time, as well as the way in which the accident occurred, are sufficiently set forth in the prevailing opinion of Mr. Justice Houghton. The facts appear that at the time of the accident the staircase upon which the plaintiff was injured was apparently safe; that the plaintiff, without negligence upon his part, went upon it to plaster the side walls of the stairway. There is also testimony in the case to show that there was a custom of plasterers to use the staircases, instead of erecting scaffolding, while plastering these side walls, and that it was the custom of those erecting the staircases either to bolt the sheet iron treads to the risers and stringers or to put on temporary wooden treads or to give notice that the staircase was unsafe, all of which the defendant failed to do.
While there is no contract relationship between the plaintiff and the defendant which imposed upon the latter the duty of furnishing a safe place to work, or other duty, nevertheless I think that the defendant, under the facts in the present case, is liable for the injuries sustained by the plaintiff upon the well-established principle of law that one should not subject an innocent person to injury by means of a trap.
The plaintiff here was in no sense a trespasser, nor was he a bare licensee. As an employee of a contractor engaged upon the building he had a right equal to that of the defendant in any part of the building to which the duties of his employment carried him. It was a part of his duty to plaster the side walls of the stairway. Under the custom testified to above, and I think even in the absence *168of any such custom, it was not only natural and reasonable that’ the plaintiff should use the stairway instead of erecting independent scaffolding, but, as it would economize time and labor, it was his duty to do so if such use could be made safely. The defendant was not obliged to provide a staircase suitable for plaintiff to work upon, but, in my judgment, if he erected one he was under the obligation not to leave it in such a condition that it would constitute a trap.
I think the judgment appealed from should be affirmed.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.