I concur with the result reached by the majority because of the confusion created by that portion of the trial court’s charge dealing with the legal effect of Buies of the Board of Standards and Appeals of the Department of Labor and subdivision 4 of section 241 of the Labor Law. As ably set forth in the prevailing opinion, and as previously stated by this court in Utica Mut. Ins. Co. v. Mancini & Sons (9 A D 2d 116) violation of the rule would be only evidence of negligence per se. Absent this error in the charge I would vote to affirm the judgment for the plaintiff.
I do not agree with the construction given by the majority to subdivision 4 of section 241. To so construe the statute would in my opinion make it meaningless and of no practical effect in construction situations like the one at bar.
It is undisputed that construction of the third floor had just commenced, that planking could not take place until after the floor beams had been put in place and that no planking had been done on the first or second floors where the laying of floor beams had been completed. This appeal raises the question of precisely when the duty to plank has its inception. The statute imposes the duty but is ambiguous in defining what is intended by ‘ ‘ the entire tier of iron or steel beams on which the structural iron or steel work is being erected ”. Unless the word “ tier ” is interpreted to mean the last floor on which the steel beams were installed there would never be any duty to plank, for once the floor beams were bolted in place work would begin on the next higher floor. The reasonableness and necessity for such a construction is demonstrated by what actually occurred in the case at bar. The simple fact is that if the second floor had been “thoroughly planked over”, the plaintiff would have landed on that floor and not in the basement. Support for this position is found in Drummond v. Norton Co. (156 App. Div. 126,130-131) where the court wrote “ that the words ‘ is being erected ’ are words of identification and not of limitation ”. In our case this would identify the second floor as the tier which should have *391been “ thoroughly planked ”. The issue of timeliness of planking in respect to proximate causation would be a question for the jury. The appellants consider the issue of compliance with the statute as a matter of law. The operative facts do not permit that view. Both appellants argue that the first and second floors had been completed, and therefore there was no duty to plank; that the third floor had not been completed and therefore no duty to plank it. This line of reasoning would excuse the appellants from ever planking and thereby make the statute completely ineffective and inoperative at any time.
The incongruity of showing a custom which supposedly prevented any planking because the erection process, including bolting up, had not been completed and simultaneously arguing that it was uncontradicted that the ironwork had been completed at the first and second floors, is obvious. Either the erection process had not been completed so that planicing could not be laid, pursuant to custom in the industry, or the first and second floors were completed. In either case, the jury was entitled to find that there should have been planking on at least one level, if the statute has any meaning whatsover. It has been expressly determined that subdivision 4 is not solely for the protection of laborers on lower floors but also for the protection of employees engaged in laying floor beams, as was the respondent (Schramme v. Lewinson, 126 App. Div. 279). The purpose of the legislation has been aptly stated by Judge Cardozo in Lyles v. Terry & Tench Co. (227 N. Y. 361, 364) where he referred to the duty to plank thoroughly: ‘1 Whether this had been done, was a question for the jury. It is not enough to show that an experienced ironworker might be able to walk without harm upon a bridge made of two planks, or even of one, and this whether unobstructed or obstructed. He might be able to do the same though there were no planks at all, by following the iron framework. That does not mean that his path would be safe. The very purpose of the statute was to guard him from such dangers. The beams are not merely to be planked here and there. They are to be e thoroughly ’ planked. The worker, in going his way about his work, is to be offered more than a choice of dangers. He is to have a way that is free from danger, to the extent that thorough planicing of open spaces will give assurance of protection ’ ’.
Construed according to the position asserted by the majority the statute provides that only the floor on which the steel is being erected must be planked over. Consonant with this interpretation, according to the appellants, if the steelwork on the first and second floors is completed any planking may be removed on those floors even though steelwork is being erected on the *392third floor without planking. However, it is a cardinal rule of construction that statutes must be reasonably interpreted so as to effectuate the legislative will (50 Am. Jur., Statutes, § 223, p. 200). Surely it was never the legislative intent that the purpose of the statute could be thwarted by playing a game of semantics. On this record, whether there was thorough planking as required by the statute was a question for the jury (Lyles v. Terry & Tench Co., supra; Employers’ Liab. Assur. Corp. v. Post & McCord, 286 N. Y. 254).
The litigation arising under section 241 has been considerable but many of the cases are not applicable here for they are concerned either with one of the express exceptions stated in subdivision 4 or with very distinguishable factual settings. This is not a case where an accident occurred near open spaces reasonably required to be left open for progress on the work, such as an incinerator opening (Giorlando v. Stuyvesant Town Corp., 4 A D 2d 701), or an opening for sloping ramp beams (Moran v. Rheinstein Constr. Co., 10 A D 2d 976, affd. 8 N Y 2d 1051), or an opening for a stairway (Duggan v. National Constructors & Engineers, 223 App. Div. 163). Neither is this a case where the alleged violation of the statute could not in any event be the proximate cause of the accident (Ithaca Trust Co. v. Driscoll Bros. & Co., 169 App. Div. 377, affd. 220 N. Y. 617), nor where the construction had reached beyond the stage where subdivision 4 is applicable (Olsommer v. Walker & Sons, 4 A D 2d 424). Considerable support for the plaintiff’s position is found in the Olsommer case where this court in commenting upon Ithaca Trust Co. v. Driscoll Bros. & Co. (supra, p. 430) wrote “ but the Court of Appeals * * * indicated that a recovery might be predicated on the theory that the failure to plank over a lower floor had contributed to the injuries of a falling workman ”,
The Labor Law should be construed liberally in an effort to apply its protection where the protection is needed (Red Hook Cold Stor. Co. v. Department of Labor, 295 N. Y. 1, 7). The primary purpose of legislation similar to subdivision 4 is to prevent accidents causing injuries (Rufo v. Orlando, 309 N. Y. 345). The first statutory enactment on this subject (L. 1885, ch. 314) is entitled “ An Act for the Protection of Life and Limb ” and that simple title succinctly reveals the purpose and intent of the legislation.
Stated simply and briefly, the evidence presented an issue of fact as to whether the proximate cause of the respondent’s injuries was the appellants’ failure to perform a nondelegable duty (Zuco v. Funt, 292 N. Y. 201). The verdict is neither against the weight of the evidence nor contrary to law.