
    Jane Ann Hulse, Adm’rx, App’lt, v. The New York, Ontario & Western Railway Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Negligence—Fall of lumber from cab during removal.
    Plaintiff's intestate, an employe of one T., while engaged in removing lumber from a car, was injured by a fall of the lumber so that he died. The car was received by the defendant consigned to its engineer or superintendent, and was delivered to one B., with whom T. had contracted to build an ice house on the company’s land. The lumber was in separate, piles, secured by stakes connected over the lumber by crosspieces. T. directed the cross-pieces to be removed and also the stakes, and upon that being done the lumber fell upon the intestate, who was placing a plank against the car. Held, that a nonsuit was properly granted; that dafendant owed no duty to the intestate, and the lumber was piled safely and was securely bound together until the contractor, T., destroyed this security.
    Appeal from judgment in favor of the defendant, entered upon an order nonsuiting the plaintiff.
    The action was brought by the plaintiff as the administratrix of the estate of her husband, Charles Hulse, against The New York, Ontario & Western Eailway Company, to recover the sum of $5,000 for negligently causing the death of her said husband in the month of February, 1892.
    The plaintiff’s intestate was a carpenter, and at the time of his death was employed by one Terwilliger in the erection of an ice house on the lands of defendant near Wickham avenue depot in the city of Middletown, N. Y. It appears that the ice house was to be used by one Berry, who is a creameryman and owned a creamery to which the iee house was to be appurtenant; the lumber was consigned to a Mr. Canfield, the superintendent or engineer of the defendant, for its use, and was delivered to Berry. On the morning of the injury, Terwilliger, in company with the deceased and others, left his carpenter shop and went upon the land of the defendant for the purpose of unloading the timber. The car upon which it was loaded was not on the track nearest to the foundation, and one Girrard, who was acting as yard master for defendant, switched the car upon the side track nearest the foundation, and then Terwilliger gave the order to proceed to unload it; he ordered his men to first remove the binding pieces which were across the top of the load to the side stakes, and then to remove the side stakes, and then to get large planks and to place one end to the ground and the other near the top of the load in order to slide the lumber to the ground; and it was while the deceased was attempting to adjust one of these planks that the outside tier of lumber nearest to him collapsed, and he was crushed beneath it and received fatal injuries,
    
      W. F. O'Neill, for app’lt; William Vanamee, for resp’t.
   Barnard, P. J.

The facts in this case are 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 lumber 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 properly granted. The lumber was piled safely, and was securely bound together, until the contractor destroyed this security. Tjje 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; 1 St. Rep., 46; McAlpin v. Powell, 70 N. Y., 126.

The case is not like Thomas v. Henges, 131 N. Y., 453 ; 43 St. Rep., 288. 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.

Ho 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.

Dykman and Pratt, JJ!, concur.  