
    Edith Stafford, as Administratrix, etc., of James Stafford, Deceased, Respondent, v. Canavan Brothers Company, Appellant.
    Second Department,
    December 30, 1909.
    Master and servant—negligence—proximate cause — act of fellow-servant. ■ •
    Where a cable used for hauling wagons containing excavated material up an incline was negligently attached to a wagon by a fellow-servant of the plaintiff's intestate, so that when the cable tightened it struck against a trunk of a tree which lay ten or twelve feet from the ordinary course of the cable, causing it to fall off the embankment and kill the intestate, the proximate cause of the accident was the act of the fellow-servant .rather than the negligence of the master in leaving the tree trunk in that position.
    Hence, there can he no recovery even though the action he brought under the Employers’ Liability Act in the absence of evidence that the person who attached the cable or the person who operated the winch on which it wound was cither a superintendent or' exercising acts of superintendence, or acted under the immediate direction of a superintendent.
    Bich and Miller, JJ., dissented.
    Appeal by the defendant, the Canavan Brothers Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 6th day of May, 1909, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.'
    
      Eugene Lamb Biohards, Jr. \_Bwtherford B. Meyer and Frank Yerner Johnson with him on the brief], for the appellant.
    
      Thomas O. McDonald, for the respondent.
   Burr, J.:

The defendant was engaged in making an excavation on a plot of ground of the dimensions of about 350 by 200 feet at the corner,of. Broadway and Eighty-sixth street, in the borough of Manhattan. For the purpose of removing the excavated material a runway had been constructed extending from Eighty-sixth street, a distance of about 75 feet. The westerly side of the- runway was on the building line of Broadway, and the runway was about 25 feet wide. In order to assist the teams up the runway a wire cable had been provided, operated by a steam winch which stood in the street. A block was fastened on the sidewalk and the cable passed through the block and down into the excavation. The cable was 100 or 125 feet long. When a truck had been loaded with material a man in-the excavation .would hook the cable to the pole or hounds of the truck and give a signal to the man in the street in charge of the winch to go ahead, the power would then be turned on and the team assisted up'the runway. On the runway planks were laid to the width of 16 feet. Between this planking and the easterly side of the runway a heavy trunk or root of a tree, weighing about half a ton, was lying: It had been taken out of the excavation and placed there about three weeks before. This root was 3 or Í feet from the edge of the planking, and about the same distance from the edge of the excavation, which at that point was 6 or 8 feet below the runway. The distance from the regular course of - the cable to the root or trunk was 10 or 12 feet. While the root had been lying there, on an average 200 team loads a day had been hauled up the runway in the manner described. On the day in question the cable was hitched to a wagon and the engine started. The cable had been left slack so that it lay loose.” As it was straightened out by the pressure brought to bear upon it, it caught in the root and threw it down upon the plaintiff’s intestate, who was working in the cut immediately below, and killed him. .

It is doubtful if leaving this trunk in the position in- which it was placed was negligent. It would not be so unless a person of ordinary prudence, exercising reasonable care, would have reason to apprehend that danger might result therefrom in connection with the work that was. being done. The fact that more than 2,000 loads of material had.been safely drawn up while it was lying there, and the absence of any evidence to show that on this particular occasion the point from which the work was being done had been changed, would justify the conclusion that the defendant was not called upon to apprehend danger by reason of its position. But conceding that there might have been negligence in leaving the trunk or root in the position in which it was placed, this negligence was not the proximate cause of the injury. (Leeds v. N. Y. Telephone Co., 178 N. Y. 118; Laidlaw v. Sage, 158 id. 73; Dulfer v. Brooklyn Heights R. R. Co., 115 App. Div. 670; Feola v. Orange County Road Construction Co., 129 id. 435.) The causa causans of this injury was the blow inflicted upon the root, just as in the Telephone Co. Case (supra), the proximate cause of the injury was the blow inflicted upon the telephone wire. In this respect the case is distinguishable from those cited by the learned counsel for the respondent. In Lilly v. N. Y. C. & H. R. R. R. Co. (107 N. Y. 566), although the plaintiff was thrown from a car upon which he was working by the force of the collision of another car with it, there was evidence that the brakes upon the plaintiff’s car were out of order, and if they had been in proper order that the car would not have been moved by the force of the impact sufficiently to throw the plaintiff down. So in Lowery v. Manhattan R. Co. (99 N. Y. 158) there was no intervening agency between the fall of the red-hot coal which struck and frightened the plaintiff’s horse, and the injury, and the same was true with regard to the electric wire which caused the injury in the case of Wittleder v. Citizens' Electric Illuminating Co. (47 App. Div. 410). The cases of Cohen v. Mayor, etc., (113 N. Y. 532) and Murphy v. Leggett (164 id. 121) were both actions arising out of the maintenance of a- nuisance, and were not founded on negligence. In the latter case the court say; In this case the plaintiff fell down the steps of the defendants’ jdatform. The steps, therefore, with the mud thereon, became the direct cause. The defendants were under no obligation, upon any theory of negligence, to furnish her a safe passageway; but' if the use of the sidewalk and platform by them was a nuisance and she was injured by reason thereof, in the manner described, it consti-' tuted proximate cause.” The act which caused the cable to come in contact with the root, if a negligent act, was the act of. á -fellow-servant for which the master is not„responsible. It is true that this action was brought ■ under the Employers’. Liability Act, but there is no evidence that the person who attached the wire cable to the. pole of the wagon, or the person who operated the steam winch, was either a superintendent or exercising acts of superintendence while so doing, nor is there any evidence that such acts .were performed under and in accordance with the immediate direction of a person so acting: That the manner of attaching the cable must have been a negligent act appears from the plaintiff’s evidence to the effect that the ordinary course of the cable was ten or twelve feet distant from-the place where this tree trunk was lying, and that for a long period of time hundreds of loads of material had been safely drawn up the runway without coming in contact with it. We think the motion made at the close of the case to dismiss the .plaintiff’s complaint should have been granted.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event-

Woodward and Jenics, JJ., concurred; Bioii and Miller, JJ., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  