On appeal from the Essex County Court.
McGeehan, Donges and Colie. The opinion of the court was delivered by Colie, J.A.D.
The petitioner, John Bigos, was a painter employed by the respondent, Waddill & Skelly. At the time he sustained the accident for which a petition for compensation was filed, the respondent was engaged in painting a factory in Nutley, New Jersey. The day of the accident was cold and windy and the foreman in charge of the painters gave specific instructions against the use of ladders on that day. We reproduce the testimony in that regard:
"Q. And on this day in question when Mr. Bigos had this accident you were foreman in charge of painters? A. That's right.
"Q. What kind of a day was it? A. Very bad, very windy day, very cold.
"Q. And before the painters went to work that morning what, if any, orders did you give them? A. I gave them specific orders not to put any ladders on the building whatsoever at any time during the day.
"Q. Why? A. It was too windy to work off ladders.
"Q. What difference did it make to you whether it was windy or not? A. Well, after all, I am responsible for these men that work under me. I am responsible for their welfare.
"Q. What was the reason for not having any ladder work on that day? A. Wind at any time is apt to blow a man off the ladder.
"Q. That is what happened in this case, as far as you know? A. As far as I know.
"Q. Now, then, to whom did you give those orders? A. All the men as a unit, a group, and all the painters were there. I didn't pass the orders on until they were all there.
"Q. How many painters were there? A. Off-hand, at that time I would say I had about nine.
"Q. Of your own knowledge, do you or do you not know whether Mr. Bigos was there when the orders were given? A. Mr. Bigos was there, they were all there, ...