
    August C. Klupp, App’lt, v. The United Ice Lines, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Master and servant—Negligence.
    Plaintiff was engaged in building a tower for defendant’s runway under the direction of one M. or of V , a boss carpenter, and while engaged in fastening the bents, after they were, raised, an order was given to loosen a rope, and, upon its being done, the entire structure fell and injured the plaintiff. No evidence was given to show that defendant had knowledge of the defect, Held, that defendant was not liable, and that a nonsuit was proper.
    
      (Martin v. Cook, 37 N. Y. State Rep., 733, followed.)
    Appeal from judgment in favor of defendant, entered upon nonsuit.
    In the winter of 1890 the defendant was engaged in work about Lake Mahopac, in Putnam county, and among other things was erecting a tower for a runway, to carry ice from the lake to the railroad cars, for transportation to New York city. One Oscar Miersch was in charge of the work; although there is some evidence tending to prove that one Yredenbergb, a boss carpenter, was in charge of the erection of the tower. On the 1st day of February, 1890, the plaintiff, who was a carpenter, was engaged, with several other men, all under the direction of Miersch, or Yredenbergh, or both, in raising and fastening the two bents which constituted the frame work of this tower. These bents were about thirty feet high, when raised, and were lying, one upon the other, in a northerly and southerly direction. The south bent being uppermost, was first raised, by means of a derrick, with tackle' and block and a horse. Then the north one was raised with the tackle, without the use of a horse. When the south bent was raised, it was allowed to lean slightly to the north, and was held from falling in that direction by a guy rope, which ran from the top of the bent to a crowbar in the field near by, and was at the same time braced on the south side by two pieces of timber, bolted to the sides and pushed into the earth. When the north bent was raised, it was brought to a perpendicular, and for a time was held by the tackle rope. Plaintiff sought to brace it on the north, as the other one was on the south, but Miersch would not permit him to do so. Then plaintiff and another workman got upon a platform, made by laying planks across from the timbers on one bent to those on another, and commenced putting on cross pieces on the sides of the bents to hold them together. The ends of these cross pieces were fastened to the sides of the bents with half-inch bolts, only one bolt being in each end. After these were put on they attempted to put some cross pieces on the tops of the posts of the bents, thus uniting them at the top as well as the sides. The end of the post had a tenon upon it, and there was a mortise in each end of the cross piece, intended to fit this tenon. It was found that the mortise was too small, and the cross pieces could not be put on. At this time the tackle rope did not hold the north bent, although attached to it, but was found to be loose, the bents being probably supported by the guy rope attached to the crowbar. Some one below gave an order to loosen the ropa One of the men near the top of the tower loosened the tackle rope, and almost immediately the whole structure fell. This order came from either Miersch or Vredenbergh, both of whom were present, and was not objected to by either. When the structure had fallen it was found that the rope attached to the crowbar was untied. The plaintiff was caught in the falling timbers and permanently injured. Miersch was present during all of the time the work was being done, and so was Vredenbergh. The sill of one of the towers was rotten.
    At the close of the plaintiff’s testimony the court granted a motion for a nonsuit, which was made upon the grounds that no negligence of the defendant had been proved; that plaintiff’s negligence contributed to the injury, and that plaintiff took the risks of the employment.
    
      A. M. & G. Card (W. Farrington, of counsel), for app’lt; De Forest & Weeks (Geo. Holmes, of counsel), for resp’t.
   Pratt, J.

—In Martin v. Cook, 37 N. Y. State Rep., 733, it is held that if a servant is injured through an alleged defect or insufficiency in the implements or machinery furnished by the master, knowledge of such defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same through his own want of proper care, in order to render him liable. In the same case it is held that where a foreman directed an employe to perform an act which was not manifestly improper in itself, which the foreman had no reason to suspect, as far as the testimony shows, would result in an accident, and from which the employe himself evidently did not anticipate danger, that a prima facie case of negligence was not made out against the master merely by the happening of the accident.

We think these principles are decisive of the present case, and justify the dismissal of the complaint

Moreover, if there was any negligence it was that of a fellow servant, acting as a workman and not as a substitute for the master.

Judgment affirmed, with costs.

Barnard, P. J., concurs.  