
    Reuben H. Shutter, Respondent, v. McClintic-Marshall Construction Company, Appellant.
    Third Department,
    November 13, 1907.
    Blaster and servant — negligence.— injury by derrick.— voluntary act of plaintiff.
    When an employee engaged in raising iron columns with a derrick is injured by the breaking of the chain attached to the column owing to the voluntary act of the plaintiff and a fellow-servant in unnecessarily pushing the girder over the side of the car on which it rested, the jury should not be permitted to find the defendant negligent because the foreman in directing the chain to be attached to the girder did not place it at the center of gravity but so that one end raised higher than the other. This, because the breaking of the chain was not caused by its position, but rather by the act of the plaintiff in pushing the girder over the side of the car, whereby the chain was subject to a sudden strain.
    Although the plaintiff’s act was commendable, tending to expedite the work, the unfortunate consequences thereof are hot attributable to the master.
    Under such circumstances it is not merely a question of contributory negligence on the part of the plaintiff in pushing the girder over the car, but a question as to the necessity of his act which placed additional strain on the chain and as to whether such act could have been anticipated by tlmsuperintendent when he proceeded to raise the column without adjusting the chain to its center of gravity.
    Smith, P. J., dissented.
    Appeal by the defendant, the McClintic-Marshall Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 1st day of November, 1906, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 5th day of November, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Miller & Fincke [F. G. Fincke of counsel], for the appellant.
    
      W. II. Johnson and H. F. Sewell, for the respondent.
   Cochrane, J.:

Plaintiff was injured while in the employ of' the defendant in the construction of an iron bridge for the New York, Ontario and Western Railroad Company at Sidney Center, Delaware county. •The. cause of the injury was the breaking of a chain. Heavy iron columns were by means of a derrick being unloaded'from a gondola car and lowered into a ravine which the bridge in process of construction was intended to span. The accident occurred while unloading the last column. The chain in question was placed around the column, which weighed about three tons, and connected it with the boom of the derrick. The derrick was on an adjoining car. It was necessary to lift the column over the side of the car, which was two or three feet. high. The chain wa's 'not adjusted to the column at its center of gravity, in consequence whereof one end ■ of the column was raised more rapidly than the other. Plaintiff, who was on the car assisting in the work, said to defendant’s superintendent, “ slack it down until we get the center.” The latter replied, “It’s all right; go ahead.”- Thereupon plaintiff, of his own volition, as far as the evidence discloses, left a tag line which was used to- steady the boom, and with a fellow-servant took hold of the heavy end of the column and lifted it over the side of the car, and as they dropped it outside the car the chain broke. The upper end of the column in its descent struck the side of the car, which was overturned, and plaintiff was precipitated into the ravine many feet below and seriously injured.

The learned trial justice, in charging the jury, permitted them to find the defendant negligent in not furnishing a reasonably safe chain, and also in unloading the column without fastening the chain around the middle thereof. Defendant duly excepted to the submission of each of those questions.

We are of the opinion that this latter question should not have been submitted to the jury. It is apparent that the chain was subjected to nó additional weight by reason of the failure to attach it to the center of the column. It is, of course, equally apparent that the chain may have been subjected to an additional strain by reason of suddenly projecting the heavy end of the column over the side of the car. But that was not the act of the superintendent, but of plaintiff and his colaborer. Their zeal in expediting their master’s work was commendable, but the unfortunate consequences resulting therefrom should not be attributed to the latter. The derrick was operated by steam power, and it would naturally and efficiently have lifted the column over the side of the car had it not been for the unnecessary intervention by plaintiff and his colaborer. The defendant at the trial conceded that the plaintiff was not negligent. It is not,.however, merely a question of contributory negligence on the part of plaintiff, but it is also a question as to the necessity of the act on his part-which placed-the additional strain .on the chain, and as to whether such act was fairly within the contemplation of the superintendent, or should have been anticipated by him when he proceeded to have the column moved without the adjustment of the chain in its precise center of gravity, so as to charge the defendant with negligence. There is absolutely no evidence either that the necessity existed for the manual lifting of the column, or that the superintendent, who at the time was on the car with the derrick, expected or had any reason to expect that such manual lifting would be indulged in by any one, and, consequently, the jury should not have been permitted to find negligence on the part of the defendant in the method of unloading the column.

The judgment and order must he reversed and a new trial granted, with costs to the appellant to abide the event. ■

All concurred, except Smith, P. J., dissenting; Sewell, J., not sitting. ' ’

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