
    George D. Rhodes, as Administrator, etc., of Frederick Rhodes, Deceased, Appellant, v. Frederick Lauer and Others, Respondents.
    
      Negligence •—an employee injured while building a retaining wall by a stone falling upon him from, a bank above — negligence of a fellow-servant.
    
    A master is not liable in damages for injuries occasioned to his employee while-engaged in laying a retaining wall by reason of a stone, which had been unloaded by a teamster upon the' edge of the bank directly above the place where the employee was working, falling over the edge of the bank upon him in consequence of the earth upon which it rested gradually yielding beneath it, as, in such,a case, the negligence, if any, is that of a fellow-servant.
    Appeal by the plaintiff, George D. Rhodes, as administrator, etc., of Frederick Rhodes, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Montgomery on the 12th. day of. January, 1898, upon a nonsuit granted by direction of the court after a trial at the Montgomery Trial Term, and also from the order upon which said judgment was based.
    
      Sullivan & Burke, for the appellant.
    
      Edward P. White, for the respondents.
   Landon, J.:

The action is to recover damages sustained by reason of the death of plaintiff’s intestate alleged to have occurred in consequence of the negligence of the defendants.

The defendants were engaged under a contract with the State in deepening the Erie canal in the city of Amsterdam, and had in their employ a large force of workmen, among whom was the plaintiff’s intestate, who was engaged in laying a. slope retaining wall upon the north bank "of the prism of the canal. They had excavated the bottom of the canal at this point to a depth of two feet below the old retaining wall, and the plaintiff’s intestate, with others, was laying a new wall from the new bottom up to the . old wall and uniting with it so that the old and new wall should together form one continuous wall from "the bottom of the canal to the top of the bank, the total height being fourteen feet as the wall sloped outward, the perpendicular height being slightly less.

At the point where the plaintiff’s intestate was working, about four feet of the old wall remained intact and about four feet of the new Avail had been constructed, leaving about six feet to be built to unite the neiv with the old wall.

Teamsters were hauling stone to be used in laying the Avail. They unloaded these stone from their Avagons and deposited them upon the top of the bank and near to' its edge so that they could be passed down to the wall layers by other workmen.

While the plaintiff’s intestate, on April 5, 1897; Avas standing and working upon the new wall, Avith his back toward the bank where some stone had a few minutes before been dejrosited by a teamster, a stone Aveigliing 200 pounds slipped off the edge of the bank and fell upon him and killed him. Why-the stone fell was not clearly shown.'

The plaintiff urges that this was not' a safe place to work. If there was any other danger than from stones falling from the top of the bank, it did not result in any injury to the plaintiff’s intestate.

While the stone were being unloaded directly over the place where plaintiff’s intestate was Avorking, he ápd Luke, another wall layer, working four feet from him, stopped work and stepped down and out of the way of danger. When the unloading was completed they resumed their work. Luke testifies that, before resuming work he looked up the bank and saw no stone near the edge.

We have the fact that the bank Avas sustained by the four feet of the old wall; that there Avas no person upon the bank near the stone when it fell; that no one observed it before it fell. How much the earth on the bank rose above the top of the wall is not shown, but we infer it did to some extent, since Avhere the stone slipped it left its trail in the earth as if it had been pushed or rolled off.

■ It probably could be inferred from all the evidence that the tow path was somewhat higher than the retaining wall, and that the stone was placed so near its edge that the earth upon which it rested gradually yielded beneath it and thus it fell. If so, the negligence,if any, Avas that of a felloAA'--servant.

There ay as evidence to the effect that the foreman of the defend-' ants told the teamster to unload the stone as near to the edge of the bank as he, could without having them roll' over into the canal. We do not think negligence or willfulness can be imputed to tire defendants because of such' a direction: From the nature of the work any intelligent teamster should infer as much without direction. It does not'appear that there had been any indications that the edge of the bank was soft or yielding.

We think the judgment should be affirmed. '

All concurred.

Judgment and order affirmed, with costs.  