
    Frank Williams, Respondent, v. Citizens’ Steamboat Company of Troy, N. Y., Appellant.
    Third Department,
    November 25, 1908.
    Master and servant — negligence — injury by fall of box — erroneous charge.
    Where a box, having been placed in a steamer gangway by direction of the owner’s superintendent, fell without injuring any one, and when replaced in a similar position under the direction of another employee again fell, injuring the plaintiff, it is error to charge that the jury may base a verdict, either on the negligence of the superintendent who first placed the box, or on the negligence of the employee who placed it the second time, on the theory that he was superintendent in the absence of the other. This, because whatever the negligence of the superintendent who first placed the box, it was not the proximate cause of the injury.
    Chester and Kellogg, JJ., dissented, with opinion.
    Appeal by the defendant, the Citizens’ Steamboat Company of Troy, N. Y., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 20th day of January, 1908, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 27th day of January, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Rosendale & Hessberg [Murray Downs of counsel], for the appellant.
    
      Countryman, Nellis & Du Bois [ Andrew J. Nellis of counsel], for the respondent.
   Cochrane, J.:

This case on a former appeal is reported in 122 Appellate Division, 188. There is on this appeal no material change in the facts. Plaintiff was injured by reason of a large box of freight falling upon him. This box was being unloaded from the defendant’s steamboat in Troy. At the direction of one Vanderyolgen, defendant’s Superintendent, it was placed iii the gangway leading from the boat and leaned up against the side of the gangway, it fell with-put injury to any one. Thereafter under the direction of one Vanderheyden the box was again placed in position against the side of the gangway. It again fell, this time injuring plaintiff.

The learned trial justice permitted the jury to base their verdict either on the negligence of Vandervolgen, tlie superintendent, in suffering .the box to be placed in the gangway in its original position before its first fall or on the negligence of Vanderheyden in causing it to be placed in position the second time on the theory that Vanderheyden was superintendent in the absence of Vandervolgen and that the latter perhaps was absent when the box was placed in position the second time. .

It is clear that if the box was originally negligently placed in position such negligence was not the proximate cause of the injury because the box fell without injuring plaintiff. It was the second adjustment of the box which caused the injury. Placing the box in the gangway was not negligence, but the manner in which it was ,/ there placed. Ho one can say that it was placed at the- same angle on the two occasions or that it was similarly placed in other respects, or.that the same conditions attended its fall on the two occasions, or that the same causes produced the two falls. As pointed out by this court on the former appeal the box may have fallen because of the swaying of the boat at the dock which conveyed some motion to the box standing in the gangway or it may have been overturned by a gust of wind. There may have been other reasons for its falling not identical on the two occasions. But whatever may have been the immediate cause of the box falling on the two occasions it is very clear that Vandervolgen caused no injury by permitting the. box to be placed in the gangway' before its first fall, and as the verdict may be based on such alleged negligence it cannot stand.

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

.' All concurred, except Chester, J., dissenting in opinion, in which Kellogg, J., concurred,

ChSsteb, J. (dissenting):

The box which fell upon plaintiff and injured him weighed about 800 pounds and was about ten, feet long, eight feet wide and a foot thick. It had been taken out from the steamer City of Troy at its dock in that city and had been placed standing upon its edge in the gangway, which was an inclined plane eleven feet wide and twenty feet long, and upon which was placed a plank platform leading from the dock to the steamer. It was first placed in the gangway under the direction of one Vandervolgen, the defendant’s dock superintendent. Afterwards it was found lying flat upon its side in the gangway. It was again placed upon its edge under the direction of one Vanderheyden, who was a freight handler, and who, according to the evidence, gave directions to the other freight handlers when Vandervolgen was absent. The action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The former judgment was reversed because the learned trial justice allowed the plaintiff to recover for the negligence of Vanderheyden while the superintendent, Vandervolgen, was not absent from the work and without any proof to justify the finding that Vanderheyden was an employee whose sole or principal duty was that of superintendence. .Upon the new trial the evidence was read from the case ■ on the former appeal, and but little additional evidence was taken, so that the evidence upon this appeal is practically the same as upon the former appeal. Because of this fact the appellant urges that if we follow our former decision we must reverse this judgment. I do not think so, for the simple reason that on the new trial the plaintiff under the direction of the court has not been allowed to recover for the negligence of Vanderheyden while Vandervolgen was not absent. On the trial now under review the' question was submitted to the jury whether Vandervolgen was negligent in directing the box to be originally placed in the gangway where it was placed, and also the question whether or not Vandervolgen was actually present upon the works at the time that Vanderheyden directed - the replacing of the box in the gangway where Vandervolgen had first placed it. It may be assumed that the jury by their verdict have answered both these questions in favor of the plaintiff’s contention. It is true that on the former appeal the first of these questions was a subject of discussion in the briefs, but in the opinion then handed down no discussion of that question appeal's to have been had. So I think it was entirely competent for the plaintiff on the new trial to again present the claim and for the jury to find that the act of Vandervolgen, in first placing the box where he did in the gangway, was negligence, and that such negligence was the proximate cause of the plaintiffs injuries.

The jury had the right to say that the superintendent, in causing a box of the weight, shape and dimensions of this one to be placed upon its edge in the gangway where the men under him were constantly obliged to pass and repass in the prosecution of their work, and where it was liable to fall at any moment, had not exercised sufficient care to protect the men under him from the consequences of such fall, and especially not in view of the testimony that the box leaned in part against a rope tied to the gang plank which by the movement of the boat in the water was liable to be tightened and cause the box to topple over. The direction of Vaudervolgen to place the box on its side in the gangway may fairly have been regarded by Vanderheyden as a continuing authority for the latter to leave it there and to replace it there when he found it lying on its side on the floor of the gangway, and the jury might properly have so found-under the instructions of the court. "Under the evidence we may properly assume "that it was replaced upon the edge by Vanderheyden in substantially the same position in which it was first placed by direction of - the superintendent and, therefore, that his negligence was the proximate cause of the plaintiff’s injuries.

For these reasons I vote to affirm the judgment.

Kellogg, J., concurred.

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