Section 18 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36)* provides that “A person employing or directing another to perform labor of any kind in the erection, 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 improper, 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.”
The hoist under consideration in the case at bar was the ordinary hod hoist operated by engine and cable for the purpose of elevating materials in a building in process of construction. Similar hoists are in general use for such purposes *274in the city of New York, and the- evidence is overwhelming that at the time of the occurrence complained of such hoists were not covered.
The interpretation of the provision of the statute made in the prevailing opinion it seems to me imports to it a meaning not in the contemplation of the Legislature at the time of the passing of the act and to fall within the realm of legislation and not interpretation. It has been thoroughly established by a line of cases that the duty placed upon the master by said section is an absolute and personal duty that may not be delegated. But in each o‘f the cases cited by the respondent there was a weakness or defect in the scaffold, hoist, ladder or other mechanical contrivance, which defect was the direct cause of the accident complained of — the rope broke, the scaffold fell or the contrivance gave way.
The interpretation now sought to be placed upon the act, that it is the absolute duty of the master to protect a workman upon any such contrivance from outside extraneous and independent injury, seems to me unwarranted. If the hod hoist must be inclosed or covered, then a scaffold or a ladder must be provided with the same protection, for a man working upon a scaffold or a ladder is equally exposed to the danger of being struck by a falling brick or other article in the course of the construction or repair of a building.
Thus the employer would in fact become the insurer of his workmen’s safety in connection with any such appliance, not only in respect to its own strength and safety, but from outside danger. It may well be that such a law would be desirable and that the mere fact of injury in an employment should entitle the employee to compensation. This doctrine must be announced by the People and the Legislature and not by the courts, whose duty it is to decide what the law is and not what it ought to'be.
The learned court charged the jury: “That there is no evidence in this case that the fall of the brick was due to the negligent act of the defendant or any of the defendant’s servants, and you may not base any verdict upon any assumed negligence in so far as the dropping of the brick is concerned.” But he refused to charge: “ If the jury does not believe that on or *275before the 14th day of November, 1910, it was the general custom and usage to cover hod hoists of this character, then the jury can attack the existence of any negligence on the part of this defendant in not covering these hod hoists.” He also refused to charge: “ There being no statutory duty on the part of the defendant to place a guard or cover over this hoist or a partition between the hoists, then the burden of showing the practicability of placing such a guard over, or partition over or between the hoists, is on the plaintiff.” The case was tried and submitted to the jury upon the theory that the law required the hod hoist to be covered.
In my opinion the statute was erroneously construed and the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Ingraham, P. J., concurred.
Judgment and order affirmed, with costs.