
    CARLSEN v. McKEE et al.
    (Supreme Court, Appellate Division, Second Department.
    December 30, 1908.)
    Master and Servant (§ 201)—Injurtes—Fellow Servants—Proximate Cause.’
    Plaintiff, with other workmen, having been directed to turn over, an iron beam, procured a crowbar, but was directed by the superintendent to take hold of the beam with his hands. The workmen then took hold of the beam, plaintiff being at one end, and raised it 10 inches, when the other workmen let go, and it fell, injuring plaintiff’s hand. Plaintiff’s purpose in getting the crowbar was to pry up the beam so the other workmen could get hold of it to lift. Held, that the direction of the superintendent to plaintiff not to use the bar, but to take hold of the beam with his hands, was not the proximate cause of the injury, but that the proximate cause was the letting go of the beam by the other workmen, for which the master was not liable.
    [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 515-534; Dec. Dig. § 201.]
    Appeal from Trial Term, Kings County.
    Action by Bernhart Carlsen against Harry D. McKee and another, doing business as the Eastern Construction Company. From a judgment for defendants, and an order denying a new trial, plaintiff appeals.. Affirmed.
    Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
    Charles Caldwell, for appellant.
    William L. O’Brion, for respondents.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   RICH, J.

The plaintiff—a servant of the defendants—brought this action under the provisions of the employer’s liability act to recover damages for a personal injury which he claimed to have sustained through the negligence of the superintendent of the defendants. The complaint alleges the service of a notice in which the statement of negligence is limited to the following clause:

“The accident was due to the negligence of your superintendent, named Smith, nicknamed ‘Bull Head’ Smith.”

The plaintiff was the only witness sworn upon the trial. He testified that he and other workmen were directed to turn over an iron beam weighing about 800 pounds, for the purpose of ascertaining its number. He procured a crowbar and started towards the beam, when "the superintendent told him to get hold of it with his hands. The workmen then took hold of the beam, the plaintiff being at one end, and had raised it 10 inches, when the other workmen let go of it, permitting it to fall back, and the plaintiff, who retained his hold, had his hand caught between it and another beam, causing the injury complained of. Plaintiff testified that the purpose he had in getting the bar, and the sole use he intended putting it to, was to pry, or as he says, “pinch up,” the beam, so the other men could get hold of it to lift.

The learned trial court, at the close of plaintiff’s case, dismissed the complaint upon the ground that the direction of Smith to plaintiff not to use the bar, but to take hold of the beam with his hands, and his compliance with such direction, if negligence, was not the proximate cause of the injury, and did not render the defendant master liable. This ruling was correct. The proximate cause of the accident was the letting go of the beam by the other workmen, a cause for which the master was not liable. Had the superintendent permitted plaintiff to use the bar, as he intended, to raise up the beam so the workmen could get hold of it, this object would have been accomplished the moment the men had secured their hold. This they did without the use of the bar, and had actually raised the beam 10 inches when it fell. The failure to use the bar was hot connected with the accident. No negligent act or direction of the superintendent is shown to have been the cause of the injury.

The judgment and order must be affirmed, with costs. All concur.  