
    James A. Mulligan, as Administrator, etc., of James Mulligan, Deceased, Appellant, v. John Ballon, Respondent.
    
      Negligence — injury to a servant unloading railroad ties, from the loosening of a guy roye by a fellow-servant.
    
    
      Semble, that where employees of a common master were engaged in removing railroad ties from the hold of a boat, and putting the same upon a railroad car placed alongside the boat, by means of an appliance resembling a derrick, ordinarily used for that purpose, so arranged that when the ties were lifted clear of the deck of the boat they would swing of their own motion over the car, the master is not liable for the death of one of the workmen stationed on the car because of the fact that a servant stationed on the boat to attend a guy rope, furnished for the purpose of preventing the tics from swinging over the car until the persons stationed thereon were ready to receive them, either insecurely fastened the same or else inadvertently or intentionally loosened it before receiving the signal to do so, in consequence of which a load of ties swung over the car and struck the servant referred to. (Per McLaughlin and Ingraham, JJ.)
    
      Semble, that in such a case the negligence which caused the accident is that of a fellow-servant. (Per McLaughlin and Ingraham, JJ.)
    Hatch, J., dissented.
    Appeal by the plaintiff, James A. Mulligan, as administrator, etc., of James Mulligan, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 17th day of June, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.
    
      George H. Hart, for the appellant.
    
      Carl 8. Petraseh, for the respondent.
   McLaughlin, J.:

Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

The facts, so far as the same are material to the questions presented, are as follows: On the 30th of January, 1900, plaintiff’s intestate, James Mulligan, was in the employ of the defendant, and with others was engaged in taking railroad ties from the hold of a boat and placing the same upon a railroad car which was placed alongside the boat; the ties were taken from the boat to the car by an appliance resembling a derrick, which consisted partly of the mast, boom and gaff of the boat, to which were attached pulleys through which ran a cable, one end of which was attached to a drum operated by a stationary engine ; the other end of the cable would, as required, be lowered into the hold of the boat, and after several of the ties had been secured, the same would, at a given signal, be raised until the deck of the boat was cleared, and then at another signal, they would be swung over the car and there placed as desired ; the appliance was so arranged that after the ties had cleared the deck of the boat the same would, of their own motion, swing over the car ; to prevent this, until such time as the signal should be given, a guy rope had been provided, which was either held by a person having that work in charge, or else fastened to pins in the side of the boat placed there for that purpose; when the persons on the car were ready to receive the ties they would give a signal, which ivas “ slack away your guy,” and thereupon the person having the guy rope in charge would let up on it; on the day in question the intestate, with another servant, was at work on the car receiving the ties as they were hoisted from the boat; another servant, by the name of McKennan, was stationed on the boat and one of his duties was to look after the guy rope; immediately prior to the accident a load of ties had been raised and placed upon the-car, and while the intestate and his fellow-workman were engaged in there placing them another load was raised, and after the same,, had cleared the boat, McKennan either having neglected to secure the guy rope or else having carelessly let go of it, the ties swung-over the car, struck the intestate and injured him in such a way that he died shortly thereafter.

The trial court held that the proof of these facts did not establish a cause of action against the defendant and dismissed the complaint, and in doing so we think he was right. The proof did not establish negligence on the part of the defendant. The evidence is,' uncontradicted to the effect that the appliance provided for taking the ties out of the boat and thereafter controlling them was the usual one adopted for that purpose; it was in working order; nothing was broken or out of repair; nor was there any evidence showing, or tending to show, that the defendant had failed to employ competent coservants, or a sufficient number of them to do the work. The cause of the accident is apparent. McKennan, whose duty it was to tend the guy rope, either insecurely fastened it or else inadvertently or intentionally loosened it before the signal had been given to do so. The intestate’s death was due solely to the negligence of McKennan. But McKennan was a coservant of the intestate and his negligence did not subject the defendant to a liability. The trial court, therefoi'e, could not do otherwise than dismiss the complaint.

The judgment appealed from is right and must be affirmed, with costs.

Ingraham, J., concurred; Patterson and Laughlin, JJ., concurred in result; Hatch, J., dissented.

Judgment affirmed, with costs.  