
    Michael Pratt, Appellant, v. Henry D. McKee and William W. Beers, Doing Business under the Name of The Eastern Construction, Company, Respondents.
    Second Department,
    December 10, 1909.
    Blaster and servant — negligence — fall of derrick—Employers’ Liability Act — act of superintendence—incompetent servants—evidence of former accident.
    Where a superintendent in the presence of plaintiff and other workmen instructed a “pusher" to take the guy rope from a- derrick, swing the hoom around arid fasten it down before taking off the guys, but'in the absence of the superintendent the boom was not fastened down in violation of the instructions, whereby the derrick fell and injured the plaintiff, he cannot recover under the Employers’ Liability Act. The fastening of the boom was a mere detail of the work, and the “ pusher ” was not exercising an-act of superintendence at the time the derrick fell.
    Where, however, the complaint alleged that the derrick fell wkile the plaintiff was on top of the boom where he had been ordered to go; that the fall was due solely to the négligence of the defendant, and the complaint is amplified by a bill of particulars specifying that the derrick was not properly secured while the front guy ropes of the derrick were being shifted from one side of the boom • to the other, and that defendants employed incompetent servants to per form the work, it is error to exclude evidence as to a fall of the same, derrick a few days before when the “pusher” was present. The plaintiff should he permitted to show all the circumstances connected with the happening of the . former accident.
    Appeal by the plaintiff, Michael Pratt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of- Kings on the 4th day of May, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Frederick N. Van Zandt, for the appellant.
    
      G. Glenn Worden ' [Frank V. Johnson with him on the brief], for the respondents. '
   Burr, J.:

The plaintiff was ..in the employ of the defendants, and was injured under the following circumstances : The defendants were engaged in doing the structural ironwork on a building at the corner of Flushing and Kent avenues in the borough of Brooklyn. The plaintiff was an experienced workman, had been employed as an ironworker for about ten years, had seek derricks moved and booms shifted, and understood and knew just how the work should be done. Charles Smith was defendants’ superintendent. Albert Erdt was what is known as a pusher.” Smith gave instructions as to how the Work was to be done and Erdt’s duty was to see that his instructions were carried out, and he assisted in the performance of the work. The derrick upon which plaintiff was injured was supported by three guy ropes in the rear, one on either side and one in front. The boom was so long in relation to the mast that when it was necessary to shift it from one side of the work to the. other it would not pass under the guy rope in front, and it became necessary to loosen this and pass it under the boom and bring it up on the other side. Smith told Erdt in'the presence of all of the men of the gang, including the plaintiff, to take the guy rope from the derrick on the front side and swing the boom around. He particularly instructed him to fasten the boom down before taking the guys off. This was deemed necessary because if the boom was not fastened and the strain of the guy in front were taken from the derrick, the guys .at the back of the mast pulling upon it were likely to overthrow it. After these instructions had been given Smith went away. The front guy rope was loosened, but the boom was not fastened to anything as he directed that it should be. In consequence of that the derrick fell over backward and the plaintiff was hurt. The action was brought under the- Em plovers’ Liability Act. The learned trial judge sustained an objection to the admission in evidence of the notice given under the said act on the ground that it was insufficient for failing to state the cause of the injury. If he was in error in this respect, and the notice should have been admitted, no different result would follow; Erdt was not a superintendent nor exercising an act of superintendence at the time the derrick fell. Fastening down the boom was a mere detail of the work. (Gallagher v. Newman,190 N. Y. 444; Cashman v. Chase, 156 Mass. 342; Flynn v. Boston Electric Light Co., 171 id. 395; Joseph v. George C. Whitney Co., 177 id. 176.) Toward the close of the case the plaintiff raised the question that irrespective of the provisions of the Employers’ Liability ■ Act, a common-law action'was made out lor failure on the part of the defendants to provide competent fellow-servants. Ko such ground of negligence was specifically set forth in the complaint, but there was an allegation to the effect that the plaintiff was “ ordered to the top of the boom of said derrick for the purpose of assisting in changing the front guy rope of said derrick from one side of the boom to the other; that while plaintiff was at the top of said mast assisting in changing said front guy rope from one side of the boom to the other, said derrick fell and plaintiff was precipitated to the floor, of the building.” There is a further allegation that the fall of said derrick * * * was due solely to the negligence of the defendants.” This complaint was amplified by a bill of particulars which, among other things, specified that the derrick was not properly secured while said operation was going on and that defendants employed incompetent servants to perform the said work. If, therefore, there was any evidence to sustain a charge of negligence for employing incompetent servants, or if such evidence was offered and erroneously éxcluded, it would be error which would require a reversal of -the judgment of nonsuit in this case. It appeared that, a few days before,' the same derrick had fallen, and that at that.time Erdt, the pusher of the gang,'was present. There was some evidence that on the day of the previous accident the rigging of the guy ropes was somewhat different, so far as the front, of the derrick was concerned-. A witness was asked this question: “On the occasion of the first accident, just before the fall of the derrick, what did yon me Mr. Erdt do V’- This was objected to, tiie objection was sustained and an exception taken. Another witness, who testified that he was present about a week before, when the derrick fell over, was asked whether the guy ropes were fastened on the day of the first accident. This was objected to and the objection sustained. He was also asked on the occasion when the derrick fell the first time: “ What did you see, or did you see Mr. Erdt doing anything just before the derrick fell?” That was objected to, the objection was sustained and' an exception taken. He was then asked this question: “Was the boom loosened ; was the support of the boom to the derrick removed just before the first accident by anybody ? ” There was the same objection, the same ruling ajid an exception. At the close of the case the plaintiff asked to go to the jury on the question of the negligence of the master in employing an incompetent fellow-servant. Although it does not clearly appear from this evidence that any act or omission of Erdt was responsible for the fall of the derrick on the first occasion, we think that the plaintiff should have been permitted to show all the circumstances connected with the happening of that accident. Even if it appeared that on that occasion it was Erdt’s diity to fasten the boom down before loosening the guy ropes, that he omitted to do so, and that in consequence thereof the derrick fell, this would not necessarily establish his incompetency. “ An individual who by years of faithful service has shown himself trustworthy, vigilant and competent, is not disqualified for further employment, and proved either incompetent or careless and not trustworthy, by a single mistake or act of forgetfulness and omission to exercise the highest degree of caution and presence of mind. The fact would only show what must be true of every human being, that the individual was capable of an act of negligence, forgetfulness or error of judgment.” (Baulec v. New York & Harlem, R. R. Co., 59 N. Y. 356, 363; Cameron v. N. Y. C. & H. R. R. R. Co., 77 Hun, 519; revd. upon another point, 145 N. Y. 400.) We express no opinion as to the question whether a single act of negligencé upon Erdt’s part would be sufficient to establish his incompetency. It may depend somewhat upon the character of the act. We think that in this case all of the testimony regarding the circumstances surrounding the happening of the previous accident should have been admitted in ©videnee, and it would then have become a question of fact for the jury, or it may be of law for the court, to determine whether such evidence established such incompetency.

We think that the judgment of nonsuit in this case should be reversed and a new trial granted, costs to abide the event...

Woodward, Jenks, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  