The plaintiff was a carpenter employed by the defendant in the erection of a number of buildings. While at work upon a scaffold on the outside of one of these buildings, a portion of the scaffold broke, and the plaintiff fell to the ground, a distance of about 20 feet, sustaining injuries to his back and nervous system, for which the learned judge, who tried the case without a jury, has awarded him damages in the sum of $1,500. The proof clearly shows that the accident was due to the insufficient strength of a plank which was used as one of the supports for the scaffold. This plank is referred to throughout the case as a bracket. It was placed upon its edge, and projected out of a window a distance of five feet or more; being spiked within the building to an upright joist, running from the floor to the roof. It was not supported in any manner outside. Planks were placed upon a series of brackets of this sort along the side of the building, and this construction constituted the scaffold. The bracket which broke was a cross-grained spruce plank; and the evidence leaves no doubt that it gave way because it was cross-grained, and therefore unfit for use as such a support. The scaffold was constructed under the direction of the foreman of the gang of carpenters to which the plaintiff belonged, the actual work of construction being done by two of the other carpenters. They were told by the foreman to take the necessary timber from a pile of spruce lumber which he designated; and, according to his testimony, this kind of spruce is regarded as the best in the world. There was other testimony to the effect that the quality of the spruce was excellent. The men who built the scaffold received special instructions from the foreman, when they were picking out the material,. *495to be sure and get good timber. The foreman went all over the scaffold after it was completed, and was unable to discover any weakness, as the result of his inspection. It is apparent that the carpenters who selected from the pile of timber the particular-bracket which broke were negligent in the examination which they made. Only one of them examined the bracket before it was put in, though both admitted that they could have told whether it was cross-grained or not by a careful inspection. The ocarpenter who made the examination of the various pieces of plank used said that he looked at them, and could find nothing wrong. He was well aware, however, that pieces which were cross-grained ought not to-be used; for he testified that, if he had known that the bracket was a cross-grained stick of timber, he would not have put it in.. If a cross-grained plank is unfit to be employed as a support for a scaffold, as this man well knew, ordinary prudence demands that the timber should be submitted to whatever examination is necessary to ascertain that it is not cross-grained; and this degree of care was certainly not observed in the present- case by the men who undertook to sort out and choose the material for the scaffold. I should find no difficulty, therefore, in sustaining the judgment, .if it could be upheld simply by proof that these persons were negligent. Both of them, however, were fellow servants of the plaintiff; and this fact brings the case within the doctrine of Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017; Kimmer v. Weber, 151 N. Y. 417, 45 N. E. 860; Stourbridge v. Railroad Co., 9 App. Div. 129, 41 N. Y. Supp. 128; and numerous other decisions of like tenor and effect. The scaffold was an appliance or instrumentality by means of which the carpenter work was to be done upon the building, and whatever injury the plaintiff suffered was due to the carelessness of his co-employés in selecting the material that was used as one of the supports of the platform, and which proved insufficient. In addition to proving that the bracket broke because it was cross-grained, the plaintiff attempted to prove that the plan’ of the scaffold was radically wrong, so that its use necessarily involved danger to the workmen who were required to go upon it. While the evidence is not very clear on that point, it certainly indicates that this plan was prescribed by the foreman, and 'that the other carpenters were not at liberty to depart from his instructions in that respect. If so, the master might be responsible for the peril to which the plaintiff was exposed by reason of a faulty plan of construction, but I do not think that the evidence would sustain the conclusion that the plan was in fact faulty. It is true that some of the expert witnesses for the plaintiff testified that the brackets which ran out of the windows of the building should have been supported, not only inside, but in some other way, as by an upright pole or brace outside. But most of the evidence on this subject was merely to the effect that a scaffold with these additional supports would be stronger, and on this branch of the case the only inference which can fairly be drawn seems to be that which was expressed by one of the plaintiff’s witnesses, who said, “If the timber is all right, the system is all right.” The ac*496cident occurred because the timber was all wrong. This was the view expressed by the learned trial judge in his opinion, which says nothing whatever a'bout any alleged defect in the plan of the scaffold. But, as the plaintiff’s fellow servants were responsible for the use of the wrong piece of timber, the master cannot be held liable, in view of the authorities already cited.
The judgment should be reversed. All concur.