
    HULSE v. NEW YORK, O. & W. R. CO.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    1. Negligence—What Constitutes—Loading Railroad Cars.
    A railroad company is not guilty of negligence because a car load of lumber is not so piled on the car in loading that it will not fall over at the sides while being unloaded, on removal of the stakes and cross-ties which held it securely while being transported.
    2. Same—Duty to Provide against Accidents.
    Where a railroad company delivers a car load of lumber to the owner, it owes no duty to an employe of his contractor to provide against the danger of accident by the falling of the lumber while such employe is engaged, by direction of his employer, in unloading it from the car.
    3. Same—Contributory Negligence.
    Where persons engaged in unloading a car of lumber remove the stakes and cross-ties which support the piles of lumber on the car, so that it falls and kills one of them, deceased is guilty of contributory negligence.
    Appeal from circuit court, Orange county.
    Action by Jane Ann Hulse, administratrix of the estate of Oharles Hulse, deceased, against the Hew York, Ontario & Western Bailroad Company, to recover damages for the death of plaintiff’s intestate, caused by defendant’s negligence. From a judgment of nonsuit, plaintiff appeals.
    Affirmed.
    Plaintiff alleged in her complaint that on or about the 27th day of February, 1892, the said Charles Hulse, while in the act of unloading some lumber on one of defendant’s cars, on the track of defendant, near the creamery of one D. W. Berry, and while adjusting a plank along the side of said car for the purpose of unloading same; the planks which were on the car were so unskillfully and negligently loaded that the same slid or tipped over on the body of the plaintiff, crushing him to the ground and killing him; and that the lumber was so negligently loaded as aforesaid by the defendant, its agents or employes. On the trial it appeared that the deceased was in the employ of Terwilliger, Berry’s contractor, and was assisting in unloading the car, which was a flat car. It was contended by plaintiff that it was defendant’s duty to have so loaded the car that the piles of lumber would not have fallen when the stakes and cross-ties were removed, and that a failure to do so was negligence; while defendant contended that no such duty rested on it; that it owed no duty whatever to Terwilliger’s employes while they were engaged in unloading the timber; and that it was negligence on the part of Terwilliger and his employes to remove the stakes and cross-ties which supported the piles on the car.
    
      Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    William F. O’Neill, for appellant.
    William Vanamee, for respondent.
   BARNARD, P. J.

The facts in this case áre substantially uncontradicted. The defendant company received a car load of lumber, consigned to one of its engineers. One Berry was erecting a creamery on the company’s lands at his own expense. The dumber was delivered to Berry and his builder, one Terwilliger. They took possession of- the car load of lumber, and Terwilliger, who was building by contract with Berry, proceeded to unload the lumber from the car. It was held in place by four stakes, two on each side, and these stakes were fastened on the top by-cross pieces. Terwilliger commenced to unload by removing all these stakes and cross pieces, both sides. The man on the top ■of the lumber—one of Terwilliger’s men—removed these stakes, and the lumber fell on the plaintiff’s intestate, causing his death. The lumber was piled in separate piles in the car, and there was nothing to hold one pile to the other piles when the stakes were removed; and this is the only fact on which the plaintiff alleges negligence in the company. The nonsuit was property granted. The lumber was piled safely, and was securely bound together until the contractor destroyed this security. The company were not bound to so load its cars that no accident could happen in unloading it after the stakes were removed. The piling was plainly to be secured, and it was the height of imprudence not to notice the fact that a pile of boards as high as this was piled was liable to fall over if it was left without support. The company owed no duty to the deceased. Terwilliger was the contractor, and he must respond to him. Hexamer v. Webb, 101 N. Y. 377, 4 N. E. Rep. 755; McAlpin v. Powell, 70 N. Y. 126. The case is not like Thomas v. Henges, 131 N. Y. 453, 30 N. E. Rep. 238. There the defendant owed a duty to keep a derrick on a dock in safe condition, and he failed to do so. It was a dock free for those who had business to moor at and unload by means of this derrick. The derrick was left unsafe, and broke, and the owner was held liable to the party injured, .although he had not any particular interest in the load which was being delivered at the dock. • No negligence was proven, and the deceased is not shown to be free from contributory negligence, even if the owner owed him a duty in respect to the unloading of the car. Judgment and order denying a new trial affirmed, with costs. All concur.  