
    Giuseppe Impellizzieri, Respondent, v. Charles Cranford, Appellant.
    Second Department,
    January 26, 1912.
    Master and servant — negligence — Employers’ Liability Act — suspended bucket falling upon workman—act iof superintendence — assumption of risk — contributory negligencei—accident not to be anticipated — erroneous charge.
    Where in an action under the Employers’ Liability Act to recover for ■ personal injuries sustained by a workman who; while working under the suspended bucket of a steam shovel, was injured because a fellow-servant in ascending the arm of a crane to replace the rope struck with his foot a lever which held the bucket in position, so that it fell upon-the plaintiff, it appears that the engineer in charge, upon having had his attention called by the plaintiff to the dangerous position of the - bucket, and upon being requested to have the bucket swung into another position, replied, “ It’s all right; go ahead; don’t be afraid; don’t be- afraid,” the jury was. justified in finding that the determination of the engineer not to swing the bucket in a different position was an act of superintendence rather than a detail of the work.
    The jury was also justified in finding that the engineer was negligent and that the plaintiff did not assume the risk and was not guilty of contributory negligence.
    In such action, however, it was reversible error for the court to refuse to charge that if the engineer, in the exercise'of reasonable care and prudence, could not have foreseen the act of the person who kicked the lever and thus caused the bucket to descend, their verdict must he for the defendant, for such refusal to charge permitted the jury to find the defendant guilty of negligence upon the ground of ¡a possible happening, even though it could not have been reasonably anticipated. - Hirschberg, J., dissented.
    Appeal by the defendant, Charles Cranford, from a judgment of the Supreme Court in favor of the plaintiff;, entered in the office of the clerk of the county of Kings on the 15 th day of February, 1911, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of February, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward J. Redington [Amos H. Stephens with him on the brief], for the appellant.
    
      Leonard F. Fish [Achille J. Oishei with him on the brief], for the respondent.
   Burr, J.:

When this case was before this court upon a previous appeal (Ml App. Div. 755) the facts connected with the happening of the accident, as a result of which plaintiff was injured, were stated. It is unnecessary to restate them here, except to observe that upon the last trial it was made clearly to appear and without dispute that the immediate cause of the descent of the bucket was that the fireman, Hildebrand, in ascending the arm of the crane to replace the rope, struck with his foot a lever projecting over that portion of the arm upon which he was climbing.

This action is brought under the Employers’ Liability Act. Upon the first trial the notice which was served when offered in evidence was excluded as we thought erroneously. Upon the last trial it was admitted. It appears that the engineer, W allace, hired and discharged the seven or eight men composing the gang with which plaintiff worked, and gave orders to them as to the manner in which they should do their work, and also to the craneman and fireman who assisted him in operating the steam shovel. Plaintiff testifies that just before the accident happened, and after Wallace had told him and some others of the gang to take the rails from the rear of the. shovel and place them in front thereof, directly under the bucket which afterwards descended, he said to him, “Have that box turned one side [meaning bucket], because there was two men working on the arm of the engine; ” that he said, “ Turn that, box around some way,” and that Wallace replied, “It’s all right; go ahead; don’t be afraid; don’t be afraid.” It also appears that by pulling a lever in the cab of the engine ■ the arm of the crane could have been swung to one side, and that this was a very simple matter, requiring but a brief period of time. If that had been doné plaintiff Would not have been injured.

We think that the jury were justified in finding that the determination by Wallace, the engineer, whether he should or should not swing this arm around, was a detail of superintendence and not a detail of the work, and that within the meaning of the Employers’ Liability Act he was then exercising acts of superintendence. (Guilmartin v. Solvay Process Co., 189 N. Y. 490; Toppi v. McDonald, 128 App. Div. 443; affd., 199 N. Y. 585; Smith v. Milliken Brothers, Incorporated, 200 id. 21.) We think, also, that the evidence justified the finding of the jury that the conversation between Wallace and plaintiff did take place as testified by the latter, and that Wallace’s conduct upon that occasion was negligent. We think, also, upon the questions of plaintiff’s assumption of risk and freedom from contributory negligence, which were submitted to the jury, that the verdict was sustained by the evidence.

It would follow that this judgment must be affirmed but for certain exceptions taken to the court’s refusal to charge as requested by defendant. In. the main charge the court said: “.’It is a question for you whether, it having been suggested to the engineer to swing it aside, so that it would not be hanging over their heads, considering how easily the thing could be done, reasonable caution did not require that that should be done and that these men should not be required to work with something hanging over their heads of great weight, which was held in place only by a lever, which could be disturbed by the touch of the toe of a man’s boot. If the engineer ought, in the exercise of reasonable prudence, to have done that, then the defendant was negligent.” And again the court said: “You are to determine, in view of all these considerations, whether, in the exercise of proper caution and prudence, having regard to the safety of these men’s lives and limbs, it was not the duty of the engineer to have swung this boom aside, so as to relieve them from any menace or risk while they were at work down there.” At the close of the charge defendant’s counsel presented this request: “I ask your Honor to charge the jury, in that connection, that if they find that the proximate cause of this accident was the negligence of Hildebrand in kicking that lever, their verdict must be for the defendant, as that would be the negligence of a fellow-servant, pure and simple.” The court replied: “No; I will not charge ihat. One of the proximate causes, of course, was the kicking of the lever, but that only joined with the other negligence, if they find that the other negligence-existed.” Defendant’s counsel then presented this request: “I ask your Honor to charge the jury that if they find that the only proximate cause of the accident was the negligence of Hildebrand in kicking the lever, their verdict must he for the defendant.” The court replied: “No, I will not charge them anything about it. The facts are just as your witnesses testified. I tell them if they find that the engineer should, upon the request of these men, have swung the menace to one side, that you are liable, the other conditions existing as to which I have charged them before.” While the latter request may have been technically accurate, we might deem the refusal an immaterial error in view of what the court had already said upon the subject as above set forth, particularly as on two other occasions during the course of the trial the court had asserted the same proposition therein contained. In discussing the case with counsel he had said: “The negligence, if any, is the omission to swing that boom a little to one side when laying this track.” And, again: “There is nothing else in the case, except whether the engineer should not have shifted the boom a little so that these men would not have to work right under a ton weight of iron.” It seems to us that this language and the language of the main charge conveyed to the minds of the jury the principle by which they were to be governed more clearly and intelligently than did the technical words “only proximate cause.” If a presiding justice has once in his own language clearly and intelligently stated to the jury the rule of law applicable to a case, he is not required to repeat the same in language framed by counsel which is less clear and less calculated to properly guide the jury than that which he has employed. But in the main charge, while the corH had properly instructed the jury that the measure of the engineer’s duty as to the swinging aside of the crane was that required by “reasonable caution,” in the application of the abstract rule to the. facts of this case, defendant’s counsel asked the court to charge that “if in the exercise of reasonable care and prudence the engineer could not have foreseen that Hildebrand would have kicked the lever,, their verdict must be for the defendant.” The>court refused, saying: “ I have left it to the jury to say whether, the lever being there and Hildebrand being directed to go up, the engineer should have taken the precaution to swing the boom aside.” To this refusal defendant’s counsel excepted and, again addressing the court, said: “If the engineer, in the exercise of reasonable care and prudence, would not have foreseen that Hildebrand would have kicked this lever, their verdict must be for the defendant.” The court replied: “ If he could have foreseen that there was any chance of it, and the jury may find that, that he could very well have foreseen that there was a chance of it—he knew where the lever was, and he knew where Hildebrand was going — and. if he could clearly have foreseen that Hildebrand might touch it on the way up and so endanger these people, if he could clearly have foreseen the possibility of that, then the question is raised whether reasonable care and prudence, in view of the value of fife and limb, did not require him to do a thing which could be so easily done.” To the refusal to charge as requested, and to the charge as given, defendant’s counsel excepted. We think that is an exception fatal to the judgment. It permitted the jury to find defendant guilty of negligence upon the ground of a possible happening, even though such happening would not have been reasonably anticipated. It raised the ground of defendant’s liability from that of negligence to that of insurance. This is not the measure of a master’s duty. This may have been the basis of the jury’s verdict.

The judgment and order denying the motion for a new trial must be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Woodward and Rich, JJ., concurred; Hirsci-iberg, J., dissented.

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