Upon the trial the complaint in this action was dismissed against the defendant Rodgers, and the jury found a verdict against the Edgemoor Bridge Works, appellant. The .appellant had a contract t’o do the iron work of a bridge across *730the Harlem river, known as the.“Willis Avenue Bridge.” The masonry piers had been built, and in order to erect the iron superstructure upon these piers the appellant caused to be built a timber structure, which rested upon piles driven in the bottom of the river; and extending from pier to pier. While this timber structure, which was to be used as a scaffold for the erection of the permanent iron structure, was in course of erection, it collapsed; and the plaintiff’s intestate, who was engaged with other workmen in building this temporary structure, was killed. It seems to me that the principle applied in cases where the master has failed to furnish for his workmen a safe scaffold for use in their work does not apply; for here no scaffold was furnished, but the accident happened while the workmen were engaged in erecting a scaffold, which, when completed, was to be used by the defendant’s workmen in the construction of the permanent structure. The negligence charged against the defendant was that proper piles were not supplied to support this structure, and that the structure was not sufficiently braced to sustain the weight of a traveler, which appears to have been a derrick which was run out on the temporary structure, as it advanced, to raise the timber used for the erection of the temporary structure. The negligence claimed as to the piles consisted of the fact that they were too short and were not properly driven; but the evidence shows, I think, that the accident was not caused by improper piles, as the piles themselves were broken off, instead of being pushed out of position, which would have been the case if they had been improperly driven or not of sufficient length. There was evidence tending to show that the particular portion of the structure upon which this traveler rested at the time of the accident was not sufficiently braced, and that in consequence of this absence of bracing the structure above the piles broke down; and the question, as I view it, is whether or not the defendant was liable because those in' charge of the work attempted to proceed too "fast, by using this traveler before the structure had been properly braced. An entirely different question would have been presented, it seems t'o me, if this structure had been completed, and the defendant had allowed his employés to use it when at work in constructing the bridge. That is the'condition to which the case of Davidson v, Cornell, 132 N. Y. 228, 30 N. E. 573, applied. The plaintiff who was there injured was employed in building a railroad, and the court, in describing the accident, says:
“The structure called the ‘traveler,’ containing the engine, boiler, and other appliances, was moved on the girders from one cross beam to another, having the weight of ten to twelve tons, and required a substantial support. In this instance, for some cause, it is said, the girders swayed as the traveler was moving along upon them, and they, with it, fell to the ground. There was no lateral bracing placed between the girders before this weighty structure called the ‘traveler’ was moved over them. Nor were the ends at the bottom bolted. * * * There was evidence tending to prove that the bracing would have •added materially to the stability of the girders, to the support of the traveler, and to the safety of the employés engaged upon it, and that such bracing is usual in like cases in other work; also, that bolting the girders at the bottom as well as. at the top would have essentially aided in keeping them in the position in which they were placed. The conclusion was warranted that the situation in which the girders were when the platform conveying the engine, *731boiler, and other implements was moved over them was such as to be deemed in defective condition for such use and purpose.”
In that case the question of the defendant’s liability does not seem to have been determined, as the case was reversed upon the question of evidence, and a new trial was ordered. ' The only question that the court discussed, other than that upon which the judgment was reversed, was as to whether the plaintiff assumed the risks incident to the work that he was about to do; but this question was apparently not determined, the court saying:
“Those [the risks] not obvious assumed by the employé are such perils as ■exist after the master has used due care and precaution to guard the former against danger. And the defective condition of the structure and appliances, which by the exercise of reasonable care of the master may be obviated, and from the consequences of which he is relieved from responsibility to the servant by reason of the latter’s knowledge of the situation, is such as is ■apparent to his observation.”
The late case of Stewart v. Ferguson (N. Y. App.) 58 N. E. 662, an appeal from this court, and decided by the court of appeals November 20, 1900, presents a case of a scaffold furnished by the master to his employés to work upon, and it was held there that sections 18 and 19 of the labor law enlarge the duty of the master or employer, and extend it to responsibility for the safety.of the scaffold itself, and thus for the want of care in the details of its construction; but sections 18 and 19 of the labor law apply only to a scaffold furnished or erected for the performance of labor in the erection, repairing, altering, or painting of a house, building, or structure. Here the plaintiff, with other workmen of the defendant, was engaged in erecting the scaffold, and it was because of a collapse of the scaffold in the process of erection that the accident happened; and what was said in Kimmer v. Weber, 151 N. Y. 420, 45 N. E. 861, would seem to me to apply to this case (there the scaffold was being constructed):
“Tbe cross pieces, or some of them, seem to have been heavy pieces of timber, and on the day of the accident two" of the workmen were engaged in putting one of those timbers in place. While so engaged one of the men let fall the end of the heavy timber that he was holding, and it crushed by its sudden fall and broke one of the cross pieces of the plumbers’ scaffold. This caused the whole scaffold to fall, resulting in the injury and death of the plaintiff’s intestate. The accident was evidently caused by the neglect of the workmen who were handling the timber, or by some defect in the cross piece of the plumbers’ scaffold. If the accident is to be attributed to the act of the workmen who were engaged in putting the timber in place, there is nothing in the case to show that the defendants are liable for the misconduct. They were co-servants, and nothing appears to charge the defendants with negligence, either in employing them originally or in retaining them. It is not suggested that the judgment can be upheld on such grounds.”
The court, further discussing the relation of the plaintiff’s intestate to the other employés, stated:
“The master is not responsible for the negligent performance of some detail of the work intrusted to the servant, whatever may have been the grade of the servant who executes such detail. If it is the work of the servant, and he volunteers to perform it, and if the master is not at fault in furnishing proper materials, there is no breach of duty on the part of the latter.”-
*732This seems to me to present the exact case now before us. The plaintiff’s intestate was engaged in the construction of this scaffold. Other employés of the defendant, who were his fellow workmen, were engaged with him in the erection of this scaffold. By their negligence this traveler was placed upon a portion of the structure not sufficiently braced, and in consequence of that negligence the structure gave way and the plaintiff’s intestate was killed. It seems to me that this was the negligence of a fellow servant, and not the negligence of the master, and for that reason I do not think that the defendant can be held liable.