
    George Ferguson, as Administrator, etc., of Carl T. Ferguson, Deceased, Respondent, v. Turner Construction Company, Appellant, Impleaded with Gustave Schock, Defendant.
    Second Department,
    October 4, 1913.
    Master and servant—negligence — death caused by falling timber — nonsuit.
    Action to recover for the death of a workman who was struck by a falling timber. There was no proof as to what caused the timber to fall, or as to whether it was due to the decedent’s carelessness, or to that of fellow-workmen. There were employees of other contractors engaged at work in the same building. Evidence examined, and held, that the court erred in setting aside a'nonsuit and ordering a new trial. Hirschberq, J., dissented.
    Appeal by the defendant, Turner Construction Company, from an order of the Supreme Court, made at the Richmond Trial Term and entered in the office of the clerk of the county of Richmond on the 18th day of April, 1912, granting the plaintiff’s motion to set aside the dismissal of the complaint and for a new trial.
    
      Frederick Hulse [Martin A. Schenck with him on the brief], for the appellant.
    
      James Burke, Jr., for the respondent.
   Burr, J.:

No- one saw what caused the timber to fall which struck plaintiff’s decedent and caused his death, nor are there any circumstances from which an inference may be drawn in regard thereto. It may have been due to his own carelessness in striking it. It may have been due to the carelessness of his fellow-workmen. There were employees of other contractors than defendant engaged at work upon the building when the accident occurred. There is no evidence as to the part of the building at which they were then occupied. In the absence - of evidence that they were not in the vicinity of the falling timber, an essential element in plaintiff’s case is wanting, for there is evidence that when they had an opportunity to do so they made use of these timbers for their own purposes. It would be pure speculation upon the part of a jury to attempt to decide which set of workmen were responsible for its fall. The learned trial justice seemed to concede that defendant’s negligence was not established at common law, but thought that it was under the provisions of the Labor Law relating to employers’ liability, which makes the master hable for the negligence of one in the service of the employer and “ intrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition,” and for the negligence of any person in his service “ intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 200, as amd. by Laws of 1910, chap. 352.) He adds: “ In the case at bar it would seem that the occurrence of the accident and the surrounding circumstances point to the negligence of the foreman in not observing that the timber in question was placed in an insecure position near the well-hole, or, if he saw it, in not removing it or properly securing it. ” (I6 Misc. Rep. 336.) In view of plaintiff’s testimony that this timber was used for a temporary purpose and was shifted every ten minutes during the progress of the work, it may. be doubted whether this can be said to be part of the “ways, works, machinery, or plant.”- It may be that the placing of this timber in the position in which it was before it fell was a detail of the work and not one of superintendence. We need not decide these questions now. In any event, the master is only liable for the negligence of his superintendent. Except that from some unknown cause the timber did fall, there is no evidence that it was placed in an insecure position. There is no evidence that the superintendent saw the timber placed in an insecure position before it fell. He was called as a witness by the plaintiff and testified that he did not see it before the accident in the vicinity of the wellhole. There is no evidence as to how long it had been near the wellhole before the accident happened, or that in the exercise of reasonable care defendant’s superintendent should have discovered it. We think that the motion for a nonsuit was properly granted and that the court erred in setting such nonsuit aside and ordering a new trial.

The order should be reversed, with costs to the appellant.

Thomas, Carr and Rich, JJ., concurred; Hirschberg, J., dissented.

Order reversed and motion for new trial denied, with costs to the appellant.  