
    Edith Mulligan, as Administratrix, etc., of Mathew Mulligan, Deceased, Respondent, v. Thompson Brothers, Appellant.
    First Department.
    March 10, 1911.
    Master and servant — negligence — death, of truck driver — fall from coal wagon — proof not justifying recovery — proximate cause — fellow-servants — selection of unsafe appliance.
    Action to recover for the death of one employed as a truck driver, who, while endeavoring to unlatch a hoisting bucket so as to discharge coal into his vehicle, fell therefrom. It was claimed by the plaintiff that the cleats holding an extension tailboard of the wagon were insufficient, so that they broke under the decedent’s weight. It was contended by the defendant that at the time of the accident the decedent was engaged in an altercation with his brother and lost his balance while in the act of throwing coal at him. Evidence examined, and held, that the plaintiff failed to show by a preponderance of evidence that the decedent lost his balance and fell from the wagon while in the performance of duties for his employer so that a judgment in his favor should be reversed. Assuming, however, that the decedent met his death while attempting to unlatch the coal bucket, the master is not liable where it was not shown that the tailpiece was not sufficiently strong to support the load of coal, for he was not obliged to furnish tailpieces strong enough to withstand the strain caused when the decedent fell upon it heavily and with great-force.
    As the proximate cause of the accident was the decedent’s losing his balance, the defective tailpiece cannot bo considered a contributing cause in the absence of evidence rendering it probable that the decedent would have been held without serious injury if it had not given away.
    Moreover, where the decedent’s fellow-servant selected an unsafe tailpiece, although the master had provided suitable ones, there can be no recovery.
    Appeal by the defendant, Thompson Brothers, 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 21st day of July, 1910, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 17th day of June, 1910, denying the defendant’s motion for a new trial made upon' the minutes.
    
      E. Clyde Sherwood [ Joseph E. Murray with him on the brief], for the appellant.
    
      William Edgar Werner, for the respondent.
   Laughlin, J. :

This is a statutory action to recover for the death of Mathew Mulligan, alleged • to have been caused by the negligence of the defendant, who was his employer.. The. defendant is a domestic corporation, and was engaged in the general trucking business in the city of New York, and owned and used in said business a great number of horses, wagons and trucks, and employed many drivers. On the 22d day of December, 1909, the defendant was engaged in hauling coal from the barge Albatross, which was moored at a dock at the foot of One Hundred and Forty-ninth street and the Harlem river, to the Ebling Brewing Company. The coal was hoisted from the barge in buckets by a hoisting apparatus known as a “catamaran,” and horse power. A derrick was so placed that as a bucket of coal was being hoisted the boom swung around slowly, bringing the bucket directly over the wagon. The height to which the coal was elevated depended on how far the team was' driven away from the catamaran. It could readily be elevated, stopped or lowered by the driver of the team furnishing the power for hoisting. The team was taken from each wagon in turn for hoisting, but another driver, regularly employed for that purpose, guided the team during the hoisting. Three buckets were employed, and while one was being hoisted and dumped on a wagon backed up to the edge of the dock, others were being filled by hand on the barge and wheeled into position to be hoisted. It was customary for the driver of the wagon to stand on the wagon to trip or dump the bucket by touching a latch which permitted the bucket, owing to the great weight of its nose, to turn bottom up. The wagons were usually employed in hauling brick and like material, and the permanent wagon boxes were suitable for these purposes, but they were not sufficiently high to haul coal economically. The defendant had on hand in its barn side and end extensions to be attached to the perihanent wagon boxes for use in hauling coal and other material which required larger and higher boxes than were needed in hauling brick. A set consisted of two side and end extensions, and defendant had provided about forty separate pieces, or ten sets. These side and end boards were provided with cleats nailed upon either side, which extended down over the sides and ends respectively of the permanent box and thus held the extensions in place, and heightening the box by the width of the extensions. It is undisputed that the side and front end extensions each had two sets of these cleats, and many witnesses testified that tail end extensions had the same number ; but is contended in behalf of the respondent that Exhibit A, which is a photograph of one of defendant’s wagons taken upwards of a week after the accident, shows only a single set of cleats on the tail end extension. When it became necessary to use the wagons in hauling coal, it was the duty of the drivers to select the side and end extensions and attach them to the permanent box on their respective wagons. If the driver discovered that any of these extension pieces were broken or out of repair it was their duty to have them repaired or to have new extension pieces made in the defendant’s repair shop, which was near by. The accident occurred on the 22d day of December, 1909. On the morning of that day one Tully, who was regularly in the employ of the defendant as a driver, was directed to go to this dock and haul coal. Evidently other teams had been engaged in unloading the barge before that day. Tully selected side and end extension pieces and attached them to the box on his wagon and drove to the dock. On arriving there he became ill, and seeing the deceased Mulligan on the dock, and knowing that he had worked for the defendant as a teamster on other occasions, lie asked him to drive the truck and work for him that day. The decedent assented, and Tally left the team and wagon in his charge. Before the accident, the vice-president and general manager of the defendant came to the dock, and saw the decedent on the wagon, and, on inquiring, he ascertained, in substance, that the regular driver Tully had left him in charge of the team and truck, and made no objection. On the part of the plaintiff, testimony was given by one witness tending to show that decedent was standing on one of the hind wheels as a bucket of coal was being hoisted and shouted to the boy driving the team and operating the catamaran to stop and come back — evidently meaning to lower the bucket — but that the boy did not stop the team and the bucket kept going higher, and the decedent stepped upon ,the wagon and attempted to reach the bucket, and, losing liis balance, fell against and grabbed hold of the extension tailboard of the wagon box, which gave way, and he went down outside the wagon and lodged between the boat and the dock; and by the testimony of another witness, that the tailboard broke, and that its appearance along the line of the break indicated that the wood was poor and rotten; and by another witness, that shortly after the accident the tailboard extension was not in place, and either the old-one or another was put in. It was shown generally that the photographs, Exhibits A and B, were fair representations of defendant’s wagons used in hauling coal, and it is claimed, as already stated, that they show that the tailboard extension on the wagon photographed, which is not shown to have been the same as that on which the accident occurred, has only one set of cleats. If the tailboard extension had only one set of cleats, and that had anything to do with the accident, it would seem that it might have been shown by the witness, who claims to have found a broken tailboard on the dock shortly after the accident, that the tail board he found had only one set of cleats and where it was broken with reference to these cleats; for if he observed it with sufficient care to determine the quality and condition of the wood, as he testified, it would seem that he would know about the cleats, and thus it would not be necessary to ask us, merely on appearances indistinctly shown on a photograph, to permit a verdict to stand which on this point impeaches the express testimony of several witnesses, who could not well be mistaken, and if their testimony be not true, it must have been willfully false. On the part of the defendant, it was shown by the testimony of seven witnesses, several of whom were apparently disinterested and wholly unimpeached, that the decedent was engaged in an animated conversation with his brother, who was in the hold of the coal barge, and that during or after the exchange of insulting remarks between them, the decedent was in the act of throwing a lump of coal at his brother when he lost his balance and fell; and considerable evidence was also given on the part of the defendant by eye-witnesses showing that the extension tailpiece did not break, but that decedent fell out over the end entirely clear of it.

A notice of claim was served by the plaintiff under the Employers’ Liability Act (Laws of 1902, chap. 600; revised by Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 200 et seq), and negligence is predicated on the fact that the decedent was directed or permitted to work on a wagon with a defective or insecure tailpiece.

We are of opinion that the plaintiff failed to bear the burden of showing by a preponderance of the evidence that the decedent lost his balance and fell from the wagon while in the performance of duties for his employer, and, therefore, the verdict should not be permitted to stand. We are also of opinion that, on the most favorable view of the evidence, the plaintiff failed to establish a cause of action. Assuming that the decedent, while attempting to perform his duty to touch the spring to dump the bucket of coal, lost his balance and fell against and grabbed hold of the extension tailpiece, and that it gave way with him, still we think the defendant would not be liable. It was not shown that the extension tailpiece was not sufficiently strong and securely held in place to support the load of coal. The decedent had hauled two loads with it before the accident, which tends to show its adequacy for that purpose. The defendant was not obliged to provide extension pieces of sufficient strength to resist the strain to which it was subjected by the decedent falling against it heavily or with great force, as the only witness who claims that he came in contact with it at all testified, and grabbing hold of it. The employer was not obliged to foresee and guard against an accident of this kind. In the ordinary operation of the derrick, the bucket of coal would be swung over the wagon where the driver could conveniently touch the spring and dump it without losing his balance, and if on this occasion it did not come within convenient reach of the decedent he might have waited until it was lowered within convenient reach. His duty did not require that he take the risk of losing his balance by an attempt to reach it when it was out of reach, still going up, as some of the testimony tends to show he did. Moreover, there is no evidence on which a finding that the decedent would not have fallen from the wagon if the tailpiece extension had not given way can be predicated. The primary and proximate cause of the accident was the decedent’s losing his balance; and before it can be said that a defective or insecure tailboard was a contributing cause, there must at least ^e evidence rendering it probable that he would have been safely held without serious injury if ithadnot given way. Furthermore, if the decedent had selected an unsafe tailpiece himself, it is quite clear that defendant would not be liable if, as appears, it provided suitable and safe ones; and the defendant does not become liable merely because the selection was made by a coemployee. (McGonnell v. Morse I. W. & D. D. Co., 187 N. Y. 341.)

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Soott and Miller, JJ., concurred.

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