I agree that the evidence was sufficient to carry the case to the jury, but go further. I think the questions of fact were fairly *290determined by the jury, and that its verdict should not now be disturbed. In none of the cases cited in thé prevailing opinion is the scaffold statute (now incorporated in the Labor Law [Laws of 1897, chap. 415], §. 18) involved, save one.(Cummings v. Kenny, 97 App. Div. 114), 'and there the judgment upon the nonsuit was reversed.
The duty to see that the ladder was safe devolved upon the defendant. " As was said by Judge Werner, in Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415, 419): “Whenever a scaffold is fúrnished or- caused to be furnished by an employer to be used in erecting, repairing, altering or painting a house, building or structure, it must be safe, suitable and proper,, or the employer is liable.” The statute includes ladders as well as scaffolds.
While, of course, the statute does not take out of the case the questions of contributory negligence and assumption of risk,'those questions, I think, were for the j.ur.y and properly decided. At all events, I think their verdict is not so against the weight of evidence as to require or warrant setting it aside.
Judgment and order reversed and, new trial ordered, with posts to appellant to abide event, upon questions of law and fact.