
    Edward F. Andrews, Appellant, v. H. & H. Reiners, Respondent.
    Second Department,
    March 2, 1906.
    Negligence — injury by fellow-servant—evidence insufficient to show negligence of master in employing said servant.
    Evidence that the plaintiff’s fellow-servant, who in driving a bung into a barrel accidentally struck the plaintiff, had previously, through carelessness, rolled a barrel down an elevator shaft, had rolled a keg down stairs, broken bottles, bruised his fingers, etc., without proof that these facts were known to the master, is insufficient to fasten negligence upon the master for employing an incompetent servant.
    Hookek, J., dissented.
    Appeal by the plaintiff, Edward F. Andrews, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of August, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 26tli day of September, 1904, denying the plaintiff’s motion for a new trial made upon the •minutes. >' ' ■
    
      Frank F. Davis [Charles J. Belfer and Francis A. McCloskey with him on the brief], for the appellant.
    
      Sidney Lowenthal [Ira Leo Bamberger with him on the brief], for the respondent.
   Jenks, J.:

The action, is by servant against master for negligént employ of a fellow-servant, whose accidental act injured the plaintiff.' Plaintiff when at work in defendant’s distillery leaned over a bañel to empty it. At that .time the other servant, in attempting to- start the bung out of another barrel, missed his aim and Struck the plaintiff ' with the wooden bungstarter. The evidence of specific acts relied upon to establish liability of the mastér under the rule of Park v. N. Y. C. & H. R. R. R. Co. (155 N. Y. 215) is found wholly in the testimony of the plaintiff. First, he . testifies that two months before, after this fellow-servant had lined up. some empty barrels on the floor, one rolled down into'the elevator shaft because the . barrels were not wedged, and because the floor, instead of being- level as,intended by the construction, was very “bad and broke up” and slanting. Second, at. another time. when. this.' servant was. filling a keg standing on the floor it rolled downstairs. Third,, at another time when the servant was carrying bottles, by their necks, -they dropped on the' floor.. Fourth, the fellow-servant had' cut. and bruised bis own fingers. Two of these accidents might be traced to. the faulty construction of the premises, while there is no proof that this fellow-servant knew or should,have known of it at the times in question." The third is hot very serious' at most, and the ’ fourth is trivial. . But in any event' there was no'sufficient proof to fasten liability on the master. As to the first -accident the witness testifies that there was no one on the floor at ' the time so far as he knew, and that- he did not .know whether “; they knew of it or not.” As to- the second he testifies that Mr. Bishop, who 1 infer was some one in authority, was there “somewhere oh the floor.” immediately before or after. As to the fourth accident thereds no proof that it was ever known to the defendant. As-to the third accident plainAiff-was’-askéd- whether anything was said on that Occasion-'-by any óf the officers of the defendant with reference to the manner in which he (i. e., the alleged incompetent) did that. This was objected to unless the officer was .specified. The court excluded it, but ho exception, was taken.. The next question was “ or by any individual.”- This was excluded under exception. The question was too broad. But even assuming that it had been answered that the defendant then and- there found fault with the failure of the attempt to carry too many glass bottles, the bit of evidence would not have been sufficient. (Baulec v. New York & Harlem R. R. Co., 59 N. Y. 356, 365.) Finally, the plaintiff testifies as to whether Mr. Reiners- or Mr. Bishop were present on any of these occasions, that “ they were somewhere on the floor ” (which was 75 feet wide by 100 or 125 feet long), but where he cannot state. The evidence is too meagre to charge the defendant with knowledge or to hold it liable for ignorance, under the rule of Park’s Case (supra), Baulec's Case (supra), and of Cameron v. N. Y. C. & H. R. R. R. Co. (145 N. Y. 400).

The judgment'must,be affirmed) with costs.

Gaynor, Rioh and Miller, J J., concurred; Hooker, J., dissented.

Judgment and order affirmed, with costs. -  