
    Lena Thompson, as Administratrix, etc., of Edward Anderson, Deceased, Respondent, v. Post & McCord, Appellant.
    First Department,
    March 10, 1911.
    Master and servant — negligence— injury to structural ironworker — fall of beam by improper operation of hoisting derrick — accident not to be anticipated — Employers’ Liability Act — insufficient notice — fellow-servants.
    Where a structural ironworker was killed by the fall of a girder which, having been hoisted to its position but not bolted fast, was struck and displaced by another girder subsequently hoisted, either because the plaintiff’s fellow-servant gave a signal to hoist the second girder before the decedent was in a position to perform his duty of guiding it with a rope, or because the decedent failed to guide it properly, the master cannot be charged with negligence in failing to foresee and guard against such accident.
    Where the beam which fell was perfectly secure in its place, although not bolted, had it not been lifted therefrom by the beam subsequently hoisted, the accident cannot be attributed to the unhooking of the hoisting rope before the beam was bolted, nor to have been caused by an order to lower the hoisting rope and raise another beam so as to make such order the negligence of a superintendent. The negligence in superintendence, if any, was in not giving an order to stay the hoisting of the second girder until the first one Bad been securely bolted.
    A notice under the Employers’ Liability Act is insufficient if it fail to state the physical cause of the death of an employee. Thus, a notice is insufficient which as respects the physical cause of the injuries merely states that they were caused by the negligence of the defendant, or of a person or persons in its employ intrusted with and exercising superintendence, and acting as superintendent “ in the operation of a derrick and the placing of a certain iron beam,” and by reason of the negligence of the defendant or its superintendent “ in the use of improper, unsafe and inadequate machinery and appliances connected with and used in your said work and by reason of defects in the condition of the ways, work and machinery connected with and used in your said business.”
    A notice cannot be sustained under section 2 of the Employers’ Liability Act on the theory of unintentional inaccuracy with respect to the cause, which had not been prejudicial to the defendant, where no physical cause whatever is stated.
    In a common-law action against a master for negligence, a “pusher” in charge of structural ironworkers is their fellow-servant, and the master is not liable for his negligence.
    Appeal by the defendant, Post & McCord, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 16th day of December, 1909, upon the verdict of a jury for $2,770, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank V. Johnson, for the appellant.
    
      G. Washbourne Smith, for the respondent.
   Laughlin, J.:

This is a statutory action to recover for the death of Edward Anderson, alleged to have been caused by the negligence of the defendant, a domestic building corporation. The defendant had the contract for furnishing and erecting the structural ironwork on the building known as the City Investment Building, at the southwesterly corner of Broadway and Cortlandt street, extending through to Church street, in the borough of Manhattan, Hew York, the dimensions of which are 311 feet by 130 or 140 feet, and the decedent was in its employ classified as an ironworker. The-accident occurred on the 22d day of June, 1907. At that time the structural ironwork had been completed to the sixth floor and partly above that point. The defendant employed a general superintendent and two assistant superintendents, one for the easterly and the other for the westerly half of the building. Under the superintendent and assistant superintendents the employees were divided into small gangs of from five to seven or eight men performing separate functions under the immediate direction of a “pusher” or foreman. There were six erecting — or derrick — gangs, three employed on ■the easterly and three on the westerly half of the building. Each of these gangs had a derrick operated by steam power from an engine in the basement or at the ground floor, and their duties were to hoist the iron girders, columns and floor beams, and put and fasten them together, with the exception of the riveting work, which was done by eight other gangs known as riveters. All of the members of these gangs were classified as ironworkers. The gang with which the decedent was working consisted- of one Edwards, a pusher or foreman, and seven other men including the decedent. The members of each gang were assigned to duties by the pusher. One- of the members was known as a bellman, and it was his duty to communicate signals given to him by the pusher or other members of the gang, or which from his experience he knew it to be his duty to give, to the engineer by pulling a bell-cord. Another was known as the stickman. He had charge of steadying the beam while the derrick was in operation and of moving'the boom from right,to left when required, which he could do by pulling on a stick or lever inserted.in a socket, whereby the mast of the derrick would revolve, taking the boom around with it. Two members of the gang were known as hookers-on or tag-line men and, acting separately or together, performed the duties of passing a sling around the material to be hoisted and hooking the "fall into the sling and then, as the load was lifted from the ground or floor, they or one of them attached a guy rope thereto, by means of which the load was steadied and guided while it was being hoisted. The other members of the gang were known as connecters, and it was their duty to receive the iron when hoisted to the position for which it was intended, and to assist in landing it in the proper position and temporarily connect it, when necessary, by inserting bolts and screwing on nuts to secure it in place until the riveters completed the work. On the day in question the derrick used by decedent’s gang was on the sixth floor, where it had been used for some time. It was evidently a very high derrick, for it had a boom seventy-live or eighty feet long, and while it was necessary to lower and raise the boom and swing it from,right to left at times, it is to be inferred that it was not necessary to move the derrick after it had once been placed in position on a given floor. Perpendicular column beams had been installed, extending up to the ninth floor, but the horizontal column beams to connect them had not been put in place. Edwards announced to the members of his gang his intention to hoist three column beams to connect the upright columns in the same panel on the seventh, eight and ninth floors, and the boom of the derrick was swung to the proper position for the performance of this work. The column beams were on the sixth floor and were about fifteen feet in length, one foot in depth, as they would be in place in the floor, and they had flanges at the top and bottom about live inches in width, and the web was about three-eighths of an inch in thickness and weighed from 600 to 800 pounds. A sling was passed around one of the beams and the fall was attached, and the beam wras hoisted to the seventh floor, Edwards riding upon it and signaling the bellman with respect to swinging and lowering it into place. The upright column beams ■were about fourteen inches thick by twenty or twenty-two inches wide, and on the sides to which these horizontal column beams were to be attached they had flanges extending out from five to seven inches, and between these flanges at the respective floor lines lugs were attached to the column beams of the same width as the flanges, forming shelves on which the ends of the horizontal column beams were to rest. The horizontal beams were designed to extend from one upright to the other, and there was only a margin of a quarter of an inch between the length of the horizontal column beams and the longest distance between the upright column beams. The practice was, as these facts would seem to require, to swing one end of the-horizontal beam into place and then to elevate the other end sufficiently to pass the flanges of the upright, and then to drop it into place. There were two holes in each end of the horizontal beams and corresponding holes in the lugs. The connecters carried bolts and wrenches for the purpose of securing columns in place temporarily,, when necessary; and in some instances, where the method of attachment was quite different, a horizontal beam would not remain in place after the fall was detached without being bolted. One of the connecters assisted Edwards in landing this column, and two others had gone above, evidently with a view to receiving one of the other columns to be hoisted. As soon as this column was put in place at the seventh floor, Edwards called out, “All off,” from which the bellman understood that he should signal the engineer to slacken the cable so that the sling could be unhooked. This was done, and the bellman then signaled the engineer to allow the fall to be lowered. The dable was steel, and in order to bring the hook on the fall down to the floor from which the load was to be hoisted,' it was necessary to attach a weight between the block and the hook. A cast steel ball about twelve or fourteen inches in diameter and twenty-two inches in length, somewhat oval in shape and weighing from 600 to 800 pounds, was used for this purpose; and as the cable was let out by the engineer on a signal from the bellman, this weight took the block and fall down. The decedent and one Cunningham were, and had been for a considerable period of time, acting as the liookers-on or tag-line men. Usually, Cunningham hooked on and the decedent attached and attended to the tag line. Cunningham passed a sling around the column intended for the eighth floor and hooked it on, and the bellman, who was on the same floor and in a position to observe this, signaled the engineer to hoist the load, and it was lifted a few feet above the floor and then stopped for the purpose of steadying it and attaching the guy rope. The decedent attached a guy rope near the ball which has been described, and" extended it along and nearly to one end of the column, and then took a turn of it around the column with a view to steadying and guiding it as it was hoisted. The bellman again, without further direction, concluded that everything was ready and gave the signal to the engineer to hoist at full speed until notified to stop. The signal was obeyed and it clearly appears that the load was hoisted while decedent was stooping over coiling up the guy rope to prevent its fouling, and before he was ready to guide it, and before Cunningham was able to go to his assistance in guiding it, with the result that the ball struck one end of the beam which had just before been put in place at the seventh floor, but had not been secured in place otherwise than as already described, and the end was lifted from the lug, and either in consequence thereof or because the beam which was being hoisted also struck the seventh floor beam, that beam was lifted out of position sufficiently to pass the flanges on the upright column, and it dropped to the floor and struck the decedent and caused his death.

The action is sought to be maintained under the Employers’ Liability Act (Laws of 1902, chap. 600; revised in Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 et seq., as since amd.), on the theory that the pusher was a superintendent, or engaged in superintendence, within the meaning of that statute, and that he was guilty of negligence in detaching the fall from the beam which had been put in place at the seventh floor before bolts were inserted through the ends of it and secured by nuts. The learned trial justice carefully confined the evidence to this isSue, and he submitted to the jury on the evidence, which was conflicting, the question as to whether Edwards’ principal duties were those of superintendence, and instructed the jury by a very clear and impartial charge that this was the only theory upon which the liability of the defendant could be predicated. No ruling of the learned trial justice in receiving or excluding evidence, or in instructing the jury, is questioned or questionable. Therefore, if the plaintiff presented a prima facie case, the judgment can ■ be disturbed only upon the theory that the verdict is against the weight of the evidence. On that question we arc of opinion that the verdict should not be permitted to stand. There was testimony given in behalf of the plaintiff to the effect that Edwards’ order All off,’ when he was about to unhook the sling from the first beam which had been hoisted, meant that the bellman should sjgnal the engineer to lower the hoist and that the other beam should be hoisted at once to the eighth floor; and also to the effect that lie added to the words “ All off” language constituting an express instruction to hoist the other beam. Many witnesses, however, including Edwards, testified that he gave no order or instructions other than by using the expression “ All off ; ” and this is quite probable, for the other men of his gang understood their duties and what was desired without further instructions. The bellman, after giving various conflicting versions of what Edwards said, concedes that if Edwards said nothing but “All off,” he would understand that it was his duty, without further order, to signal the engineer to lower the fall, and that the other members of the gang would then proceed with the work, and that according to the usual course of business in the performance of this routine work daily, without any signal from the hookers-on or any one else, he would signal the engineer to lift the load when it appeared to liirn to be ready to be lifted, as he did on this occasion. Moreover, it is apparent from his testimony that the- accident was caused either by his giving a signal to hoist the column at full speed before the decedent and Cunningham were in a position to steady and guide it or by the failure of the decedent to perform his duty to guide it. It is manifest that such a weight suspended on a cable from the boom of a derrick from sixty to eighty feet above would sway and swing if hoisted rapidly unless carefully started and guided, and this was the purpose for which the guy rope was intended. It does appear that occasionally, in hoisting such girders, the ball came in contact with and bumped a beam, girder or column, and while it may be that the force of the contact between the ball and this beam, or between the other beam and it, was not sufficient to tear the beam out of place had it been securely bolted, still, had the machinery been operated in the ordinary manner and the employees performed their duties, there was no necessity for bumping this beam in such a manner as to lift it out of place, which, according to the evidence, required lifting it more than a foot at one end, and we think it was not negligence not to foresee and guard against such an accident. Moreover, it cannot fairly be said that the accident was due to unhooking the sling before the beam was bolted and secured in place ; nor was it caused by the order, if an order was given, to lower the fall and hook on to the other beam. The beam which fell was perfectly secured in its. place, had it not been lifted so far out of place. If, therefore, there was any negligence in superintendence, it was not in allowing preparation for hoisting the other beam to be made before the beam which fell was securely bolted, but in not giving an order to stay the hoisting of the other column until the first one hoisted was securely bolted.

We are of opinion also that the notice served in an attempt to comply with the requirements of the Employers’ Liability Act was insufficient. The notice states the alleged negligent cause of death, but it fails to state the physical cause thereof. It gives notice that on the 22d day of June, 1907, on the premises situated on the southeast corner of Church and Cortlandt streets ■—• the building ran through from Broadway to Church street ■—in the borough of Manhattan, Mew York, where certain building operations were being conducted by defendant, the decedent while at work in defendant’s employ “ received injuries from which he died,” and the only provision of the notice which has any possible bearing on the physical cause of the injuries is that they were caused by the negligence of the defendant, or of a person or persons in its employ intrusted with and exercising superintendence, or acting as superintendent with its authority, “ in the operation of a derrick and the placing of a certain iron beam,” and by reason of the negligence of the defendant or of its superintendent “in the use of improper, unsafe and inadequate machinery and appliances connected with and used in your said work, and by reason of defects in the condition of the ways, works and machinery connected with and used in your said business.” Under the ruling of the Court of Appeals in Logerto v. Central Building Co. (198 N. Y: 390) this notice appears to be fatally defective in not stating the physical cause of the injuries which resulted in the death of plaintiff’s intestate. We must assume, in view of that decision, that a notice cannot be saved under section 2 of the Employers’ Liability Act (Labor Law, § 201). on the theory of unintentional inaccuracy with respect to the cause, which has not been prejudicial, where there has been no physical cause stated at all. The defendant duly objected to the admission of the notice in evidence, on the ground that it was insufficient, and it moved for a nonsuit on the same ground, and at the close of the evidence moved to strike out the notice and for a dismissal of the complaint and for the direction of a verdict on the ground that the notice was insufficient. We are of opinion that these objections and motions were well founded and should have been sustained and granted. It is manifest that there is no cause of action at common law on the facts pleaded or proved, for the reason that at common law any negligence on the part of the pusher would be the negligence of a coemployee, for which the defendant would not be liable. It is evident, therefore, that a new trial cannot avail the plaintiff, and the complaint may as well be dismissed.

It follows that the judgment and order should be reversed, with costs, and the complaint should be dismissed, with costs.

Ingraham, P. J., McLaughlin and Scott, JJ., concurred; Miller, J., concurred on the last ground.

Judgment and order reversed, with costs, and complaint dismissed, with costs.  