
    Ellen Barsalou, as Administratrix, etc., of Origene Barsalou, Deceased, Respondent, v. John Peirce, Appellant.
    First Department,
    December, 1905.
    Hegligence — death of defendant’s employee by falling beam placed by other contractors. ,
    The plaintiff’s intestate was employed by the defendant, who had a contract for the mason work in the erection of a building. The intestate, while wheeling a barrow of cement; was struck and killed by a falling beam which had been placed by contractors other than the defendant near the edge of a' gallery above the place where the intestate was at work. Plaintiff had already settled another action for the same injury with the contractor who had placed the beam in said position. There was" no proof that the defendant had anything "to do With the placing of the beam or any control "over it and had not given plaintiff's intestate any direction to walk under said gallery in the performance . of his work. " ■ • .
    
      Held, that there was nothing to. justify a finding Of negligence1 on the part of the defendant, and that a verdict in his favor should have been directed. .
    Appeal, by the defendant, John Peirce, from a judgment of the Supreme Court in favor of the plaintiff, entered in .the office of the clerk of the county of New York on the 24th day of" April, 1905, upon the Verdict of a jury for $500, and also from an order entered in said clerk’s office on the 20th day,of April, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank Verner Johnson, for the appellant.
    
      Adolph L. Pincoffs, for the respondent.
   .Ingraham, J.:

. .The complaint alleges that, in April, 1904,. the defendant had á contract for the:mason work in the erection Of a building at' Fifty-ninth street and Tenth avenue* in the .city .of New York, and that the plaintiff’s intestate was in the employ of the defendant, engaged, in the construction of such building; that on the ,26th day of April, 1904, the plaintiff’s intestate was engaged - in the course of such employment in wheeling a barrow on the ground floor of said build- . ing; that over the place where the plaintiff’s intestate was working was a balcony, and on or near the edge of this balcony certain iron switch plates or bars had.been piled; that the defendant failed to have such work properly supervised and failed to cause proper warning to be given to the plaintiff’s intestate and to provide him with a reasonably safe place to perform his work, and that while the plaintiff’s intestate was engaged as aforesaid he was hit on the head by one of the iron switch.plates or beams which fell down from said balcony, and was instantly killed, and for the damages thereby sustained by his next of kin this action was brought.

Upon the trial an employee of the defendant testified that he was working for the defendant on the twenty-sixth of April in the construction of this building ; that on the Fifty-ninth street side of the building there was a balcony about fourteen feet up from the ground, eighteen or twenty feet wide; that he saw an iron switch frame fall down and strike the plaintiff’s intestate on the head; that this switch frame was about sixteen feet long and made up in sections about two feet apart; that the witness had seen that or similar switch frames on the balcony about an hour previous; about five or six of them piled there, towards the outer edge of the balcony ; that he saw two of the defendant’s employees working on the balcony, moving the scaffold from the balcony where the masons were working; that the only work being done on the building at that time was the mason work and the carpenter work; that there were dynamos or engines running, and cranes working; that there was some vibration through the building caused by the cranes running and the machines working; that he saw the switch plate as it fell slip off the edge of the balcony and come down on its end; that he could not say whether the cranes were running at that time; that this frame that fell over the edge of the balcony went down through a large space where they were going to have their dynamos, and that at the time of the accident the walls were up and the roof' was on. This was the only testimony as to the accident.

At the end of the plaintiff’s case the defendant moved to dismiss the complaint, which motion was denied.

On behalf of the defendant his superintendent testified that all of the work that the defendant did upon the building was mason work; that while the defendant was doing this work the employees of the General Electric Company were putting in these switch plates and electrical machinery; that the Western Electric Company was putting in its machinery; that another contracting firm was putting in its machinery, and 'the Terry & Tench Construction Company; .was putting in iron work.; probably forty or fifty contractors working there at that time; that the defendant did not have anything .to do with the. premises except in relation to the mason, work; that the cranes, were being operated by the Interborough Sapid Transit Company; the defendant had nothing to do with them; that the iron beams that fell were not placed upon the balcony by the defendant or any of his employees; that he had nothing whatever to do-with them. It was then admitted that an action had been commenced against the General Electric Company by the plaintiff’s intestate, and that that action was settled by the payment of $1,.000 by the General Electric Company to the plaintiff, and • the plaintiff had signed an instrument under seal discharging the General Electric Company, but preserved the rights of the plaintiff against this defendant, and that in consideration of that payment the action against the General Electric Company was discontinued-..

The defendant then rested and moved for. the direction of a verdict upon the -ground that no Cause of action had been proved against the defendant, and that if there was any negligence it was the negligence of the General Electric Company, with whom the plaintiff had settled.

I think this motion should have, been granted. There was no evidence that the plaintiff’s intestate was required, in the . course of his-work, to walk under this balcony upon which this iron work was-piled, or that lie was' required by the defendant or his superintendent to place lfimself in this particular position in the performance of his work. The defendant did not, therefore^ supply this particular place for the plaintiff’s .intestate to do his work. Plaintiff’s intestate was engaged'in wheeling a-barrow of cement.. There was nothing to show that there was any necessity of placing- himself in this position, under the balcony. The evidence is uncontradicted that the iron frame that fell had been placed upon the balcony by other contractors and their employees, over whom this defendant-had no control, and he was not responsible for the negligent piling1 of" the iron frame: close to the edge of the balcony. There were other employees of the defendant removing scaffolding upon this balcony at or about the time of the accident, but there is nothing to show that anything that they did had any relation to the fall, of the iron plate that struck the plaintiffs intestate. If their acts had any connection with the accident it was the negligence of a fellow-servant for which the defendant was not responsible. It is clear that the defendant was not in any why responsible for the method by which these iron plates were piled upon the balcony, or for any vibration of the building that caused them to fall. Ho act of the defendant or his employees in any way contributed to the accident, and there was, therefore, nothing to justify a finding of negligence against this defendant. .

It follows that the judgment and order appealed from must be . reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, P. J., Patterson, Clarke and Houghton, JJ., concurred.

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