
    Elizabeth De Bock, as Administratrix, etc., of Abraham De Bock, Deceased, Respondent, v. American Bridge Company of New York, Appellant.
    Fourth Department,
    March 3, 1909.
    Master and servant — negligence—displacement of platform by fall of derrick — facts not justifying recovery.
    Action against a master to recover for negligence causing death. The decedent, an experienced structural steel worker, was engaged with others in the operation of a derrick placed upon a “traveler” which was a hollow cube, part of the lower deck of which was planked, the upper deck consisting of three heavy iron beams supporting planks but not fastened to the frame. The foreman ordered a beam to be raised from the cellar by means of a rope running over the edge of the planking of the lower deck without passing the same through a block at the angle. As the column was being raised the rope cut into the wooden planking causing vibration and finally a dog in the drum of the hoisting apparatus slipping, the beam of the derrick fell down, tore the mast from its socket and the whole derrick fell to the cellar. No one was injured by this accident, and the foreman calling from the cellar ordered the decedent Who was stationed on the lower deck of - the traveler to go to the upper deck and see if the other derrick was in good condition. While walking along the upper deck the planking gave way owing to the fact that one of the iron beams had shifted so as to leave the plank without support: On all the evidence,
    
      Held, that a finding that the displacement of the beam had been caused by vibration of the traveler owing to the fact that the hoisting rope ran over the edge of the planking without a pulley was against the weight of the evidence;
    That under the circumstances it was not negligent for the foreman to order the decedent, an experienced steel worker, to inspect the remaining derrick after the accident without ascertaining the situation before hand;
    That even if it be assumed that the failure to use a block for the derrick rope where it passed over the platform was negligence chargeable to the master, the death was caused by a new situation which had arisen independent of the original negligence, and embodying extraordinary conditions not reasonably to be apprehended.
    Appeal by the defendant, the American Bridge Company of hiew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 6th day of June, 1907, upon the verdict of á jury for $10,000, and also from an order entered in said clerk’s office on the 3d day of July, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Percival De Witt Oviatt, for the appellant.
    
      George H. Harris and Howard H. Widener, for the respondent.
   Spring, J.:

On the 9th day of May, 1906, and for some time prior thereto, the plaintiff’s intestate, Abraham De Bock, thirty-one years of age, was in the employ of the defendant as a structural steel worker, assisting in the erection of the iron work on the Duffy-M.clnnerney building in the city of Rochester.

This iron work had progressed so that the frame for the first story of the building was mostly in place. The structure was composed of heavy metal girders and columns, and for the purpose of setting them in place large derricks were used. As the work advanced it was necessary that these derricks be moved about. For the accomplishment of this purpose two large working derricks were placed on what is called a “ traveler,” which was moved or rolled on fixed tracks from place to place about the structure. The traveler was a hollow cube, the floors being thirty feet square and the height between the two decks being twenty-five feet. It was well constructed of heavy timbers. One-half of the lower deck was planked. The northwest half was not covered so as to leave unobstructed the view from the lower floor of the traveler to the cellar below. On thé upper deck, and lying north and south, were three beams twelve inches square and forty feet long, each weighing about one ton. They were not fastened to the frame, and the middle one extended some three or four feet beyond the sides of the traveler. On the upper deck were two derricks, one on the northeast and one on the northwest corner: These derricks consisted of a vertical rotating mast twelve by fourteen inches and thirty or thirty-five feet high, and attached at the bottom and extending outward sixty feet was the boom. Each derrick was supported by two heavy wooden timbers called stiff legs, extending from the top of the mast to the opposite corners. After the erection of the last derrick and at the time of the accident to plaintiff’s intestate the only flooring on the upper deck consisted of about six sixteen-foot planks laid across the three heavy timbers or beams. These planks were a foot wide and two inches thick and each weighed about one hundred pounds. They lapped over the middle beam. At the time of the accident to the plaintiff’s intestate this - flooring was about six feet wide, thus leaving the greater space on the upper deck uncovered.

On the lower deck of this traveler were placed the engine, shafting, boiler and machineiy which were used in operating the derricks on the upper deck. The contrivance used for this purpose was the regular niggerhead and drum .arrangement connected with the engine. Each derrick was supplied with a drum and two nigger-heads. The use of the drum was to wind up the cable and thus ■raise and lower the boom on the derrick and the boom was held in its particular position by a dog which fitted into a ratchet. The lines which were used to raise and lower the loads on the booms were permanently attached to the drums and the niggerheads were used to wind up these lines and thus raise and lower the load attached to the derrick.

On the day in question one Splan, the foreman in charge of the work for the defendant and under whom De Bock was employed, desiring to move a six-ton column in the basement or cellar of the building ordered a line run for that purpose. Splan was in the cellar and in pursuance of his direction the line was run from the engine down over the sill of the lower deck to a block in the basement, thence to the column to be moved. The rope which was used was not put through a block for the purpose of making the angle from the engine to the basement and over the sill of the traveler. Instead the rope was allowed to come in direct contact with the wooden sill as it made the turn or dip .from the lower deck to the basement. There were proper blocks furnished for this purpose, but none was used. ¡Neither of the derricks was used in this operation and both were idle. The running of the line was done by De Bock’s fellow-workmen and the foreman all the time was in the cellar. De Bock was an experienced workman and had assisted in preparing a block to be used in the angle. The men down below could not see whether a block had been used or not.

When the line was ready, signals were given to haul the column. The column pulled hard, and the rope as it went over the sill smoked and cut into the wood. The traveler trembled, although the evidence shows that such is the case whenever it is moving a load. While the column was being moved'the dog on the drum in some way slipped and allowed the boom of the northeast derrick to fall down. The falling boom dislocated the mast from its socket, and the whole derrick, as well as the stiff leg supports, fell into the cellar or pit below. ¡No one was injured by this collapse, and De Bock and Cobb remained on the lower deck of the traveler. Fully five minutes elapsed when Splan, the foreman, called out: “You fellows go up and see that the other derrick is all right.” It may be assumed that this order was intended for De Bock and Cobb, and in response to it they went aloft by means of a ladder at one corner of the traveler and started across the upper deck. They walked along one of the upper sillg until the planking was reached and then on the planks. As they passed beyond the middle beam the planking suddenly gave away and both De Bock and Cobb were precipitated below, and the former was killed. Subsequent examination disclosed that one end of this middle 2,000-pound beam had been shifted sidewise over a foot, thus leaving the middle planking unsupported.

It is "claimed by the respondent that the running of the line over the sill added largely to the vibration of the traveler,-and may have been - responsible for the shifting of the beam. We think such a conclusion against the weight of the evidence. The mast and its outrigging supports were painted yellow, and on the side of the timber and adjacent to the derrick were yellow paint marks and bruises of some size after the accident, indicating that these, supports must have struck this beam in their descent. This cause for the shifting of the beam is far more reasonable than that it was due to vibration, which theory is dependent upon expert testimony.

However, the question is not very important. The collapse of the derrick inflicted no injury upon any of the workmen. Several minutes passed and it was a closed incident. Splan, the foreman, was in the basement and could not see that the beam had been displaced. He had no intimation of any change in the location of that heavy timber, and had' no reason to anticipate that it had been shifted one or two feet. De Bock and Cobb were under this beam. They had an unobstructed view above them. They were men familiar with the business — experienced in steel construction. They knew that Splan had not made any inspection of the conditions on the upper deck. He had a right to place some reliance upon the capability of these men. He sent them on a tour of inspection. In the circumstances, he was not remiss in failing to ascertain the situation before sending these men upon the planking. If the failing of the derrick had rendered the situation more hazardous, he was justified in assuming that these competent men in close proximity to the place where the difficulty arose would appreciate it far better than he could from the basement.

Assuming that the defendant was negligent in not having a block for the cable to pass through, and that such omission was the' master’s duty instead of the act of a fellow-servant or a detail of the work, and that the collapse of the derrick may be attributed to that defect, still we think no actionable negligence of the defendant was established. A new situation had arisen independent of the original negligence. The beam was out of place, no matter what caused it. The displacement was due to extraordinary conditions, not to be ^reasonably apprehended, and of which the foreman had no knowledge.

It is mere speculation to say that had the planks been spiked to the'beam it would have remained stationary, although the weight of the evidence is decidedly to the effect that they were spiked to this center beam. The planks were heavy and the construction was safe, except for the extraordinary catastrophe which occurred. Had this been a danger which might have been foreseen, a different rule might prevail. It was an unfortunate accident, but the legal responsibility of the defendant for it does not appear.

The judgment should be reversed.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  