
    John F. Lynch; Appellant, v. The Bush Company, Limited, Respondent.
    
      Negligence—-.injury from the fall, upon one engaged in hoisting merchandise, of a hom'd nailed to the sill of a window through which the goods were taken.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff was employed by the defendant to assist in hoisting bales of licorice into a third-story window in the defendant’s warehouse.The defendant had caused to be securely fastened to the sill of the window a stick of timber, which was of material assistance to the men engaged in taking the bales through the window. These men, finding that the stick of timber was not quite high enough to be of the greatest utility, nailed an extra piece of, board on the top of the timber.
    On the day of the accident this board became loose and the defendant’s foreman, upon being notified of that fact, sent a man to nail it down, but continued to proceed with the work. Before the man arrived, one of the bales came in contact with the loose board and fell to the ground, striking the plaintiff on the head and injuring him.
    The accident occurred on the afternoon of the second day of the plaintiff's employment. It did not appear that the board was not securely nailed to the timber when the plaintiff commenced work in the morning, or that a similar accident had ever happened before.
    
      Meld, that the plaintiff’s complaint Was properly dismissed:
    That the negligence which directly produced the injury was that of the foreman, a fellow-servant of the plaintiff, and that the defendant was not liable therefor.
    Hirschbero and Hooker, JJ., dissented. -
    Appeal by -the plaintiff, John F. Lynch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. ,
    
      Abram H. Dailey [Melville J. France with him on the brief], for the appellant.
    
      L. Sidney Carrere, for the respondent.
   Woodward, J.:

John F. Lynch, the plaintiff in this action, commenced working for the defendant on the 1st day of April, 1901, as a longshoreman or common laborer, and on the following morning he was.set at work with, others in hoisting bales of licorice weighing 350 to 400 pounds, into a third-story window of the defendant’s storehouse. It appears that the hoisting was done by means of a rope passing through a pulley and operated by electricity, and it was the duty of Lynch to stand below the pulley block and as the hooks came down he attached them to two bales of the licorice and they were then hoisted to a window about seven feet wide on the third floor, where they were drawn in, stood upon end, and by others carried upon hand trucks to be piled away in the interior of the building. The window ledge of the building is of stone, and the defendant had provided a stick of timber, about twelve inches square, which was placed over the window sill and firmly wedged and braced into its position, so that it would not fall out. By the use of this contrivance the stone ledge was not only protected, but it was easier for the men at the window to turn the bales and land them upon end inside the window, where they could be conveniently handled. It appears, however, that this timber was not quite high enough to accomplish its- purposes with the greatest of ease to the men engaged in the work, and they had been in the habit of nailing an extra piece on top of the timber when handling large bales. Some time prior to the plaintiff engaging in this work, the defendant’s foreman had found a piece of board or timber on an upper floor of the defendant’s warehouse, and had nailed the same on top of the timber supplied by the defendant, and which is conceded to have been safe and reasonably adapted to the purpose for which it was designed, and with things in this condition the plaintiff went to work as above described. He worked during the forenoon, and during the afternoon one Callahan, who was engaged in drawing the bales at the window in company with one Feeney, defendant’s foreman, discovered that the smaller timber had worked loose. He spoke to the foreman, Feeney, about it, and the latter sent for a man to come and nail the piece down, and continued to forward the work. Before the man arrived to nail the piece in place, and while one of the bales was being dragged in at the window,.it came in contact with the loosened timber and it fell, striking the plaintiff upon the head and producing the injuries for which recovery is sought in this action. The plaintiff was nonsuited upon motion of the defendant, and upon this appeal is entitled to the benefit of all the facts and inferences which a jury might properly draw from the evidence most favorable to his contention. (Eastland v. Clarks, 165 N. Y. 420, 425, and authorities there cited.)

We are, however, unable to discover anything in the facts which may be said to have been established which is sufficient to charge the defendant with ¡negligence, Assuming that the defendant was so far aware of the custom of putting on this extra piece .of timber, that it was its duty to see that it was reasonably safe "for the purposes for which it- was used, the undisputed evidence shows that it had been used all of the forenoon without danger; there is no evidence that any one had ever before been injured by such an accident; there is no evidence of any lack of reasonable care in nailing the timber to the solid foundation provided by the defendant, and the only negligence which the evidence discloses is that of the foreman, a fellow-employee, who, on his attention • being called to the fact that the piece of timber was loose, continued to operate the elevating apparatus. Here Was the negligence which directly produced the plaintiff’s injury. The contrivance was reasonably safe for the plaintiff when properly nailed in place, and there is no évidence to show that it was not so nailed in the morning when the plaintiff went to work. The fact that it may have worked loose during the day was not more obvious to the defendant than to the plaintiff, and the fact that its dangerous condition was discovered in time to have prevented the. accident, by the exercise of reasonable care on the part of a fellow-servant, does not charge the master with negligence for which he can be made liable here. The place afforded him in which to work was, in the absence of negligence on the part of Feeney, as safe as the nature of the employment would permit, and it would be grossly unjust to hold the defendant liable for this injury. .

The judgment appealed from should be affirmed, with costs.

Goodrich, P. J., and Bartlett, J., concurred; Hirschberg and Hooker, JJ., dissented.

Judgment affirmed, with costs.  