
    Adam Wack, Respondent, v. John J. Tobin and Mary Costigan, Appellants.
    First Department,
    December 13, 1907.
    Negligence — Employers’ Liability Act — injury by tie thrown from hoist.
    Where a workman is injured by a railroad tie slipping or being thrown from a bundle of ties which was held about the center, by a chain formed into a loop by a hook on the end through which it ran; a recovery under the Employers’ Liability Act, based on the theory that the sling was an unsafe appliance because the hook was too small and not properly bent, will be reversed when there is nothing to sustain the claim beyond testimony that another chain, which was sometimes used, worked better, of which the foreman was notified, and it .is not shown that there was any fault in the hook or chain used, and it appears that the tie was loosened by the sling bumping against the rigging of the ship which was being unloaded, and that ties sometimes slipped out of the bundle no matter what chain Was used. '
    Appeal by the defendants, John J. Tobin and another, 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 16th day of March, 1907, upon the verdict of a jury for' $1,500, and also from an order entered in said clerk’s office on the 20th day of March, 1907, denying the defendants’ motion for a new trial made upon the minutes.
    
      John J. Delany, for the appellants.
    
      Herbert G. Smyth, for the respondent.
   Scott, J.:

The defendants appeal from a judgment entered upon a verdict for plaintiff and from an order denying a motion for a new trial. The defendants are stevedores, by whom plaintiff was employed, and the action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). At the time of his injury plaintiff was one of a gang employed in unloading railroad ties from a sailing vessel. The ties were in the hold of the vessel. They were'put together in bundles and around each bundle was put a chain with a hook at the end, the hook catching around the standing part of the chain (not in a link), so that as the bundle was hoisted its weight tended to tighten the chain and hold the bundle together. The ties were to be loaded on a freight train standing on the dock, and a platform ran along the dock, its top being level with the floors of the cars. Each bundle of ties was hoisted out of the hold by steam power and swung over the platform. The plaintiff’s duty was to stand on the platform and guide the bundles so that the ties would be dropped at the desired spot. The plaintiff’s account of how the accident happened is as follows: “When this sling of ties came within the range of my sight, as the sling of ties came up, it strucJc the rigging of the nigh side of the ship, and it was my duty to stand out on the bridge to receive' this here sling and as it came across me it struols the top of the hox oar and one of them came out the same as an arrow would come out of a bow, and it struck me in the limb and broke it.” The plaintiff sues under the Employers’ Liability Act, the particular fault charged against defendants being that they furnished an unsafe appliance for use in the work in that the hook at the end of the chain was too small; that it was more open and that it had a shorter bend than a hook sometimes used. We are unable to find in the case any evidence that the hook was defective, or that it had any peculiarity which can be said to have led to the accident. It does not appear that it slipped from the chain, or that the chain would not run through it readily so as to tighten up on the bundle when the weight came on it. It does appear that some of the men complained to the foreman about the chain, and said that it did not draw as well as another. There was some evidence that the chain did not tighten up as well as another chain sometimes used, but there is nothing to show that this was the fault of the hook, or of any peculiarity in chain or hook which any witness could point out. It appeared that ties sometimes slipped out of the bundle no matter what chain was used, and it is quite evident that the swinging of the bundle of ties against the rigging was sufficient to account for this particular accident. We think that plaintiff failed to show that the appliance was unfit. The judgment and order will be reversed and a new trial granted, with costs to appellants to abide the event: ,

Patterson, P. J., Ingraham, Laughlin and Clabke, JJ.,. concurred. ' -

judgment and order reversed, new trial ordered, costs to appellants to abide event.  