
    Annie Best Morton, as Administratrix, etc., of Edward Morton, Deceased, Respondent, v. Smith Hoisting Company and Milliken Brothers, Inc., Appellants.
    Second Department,
    March 5, 1915.
    Evidence —testimony of witness on former trial — master and servant —negligence —failure to warn servant of other contractor.
    Where in an action to recover for death caused by alleged negligence, a witness has testified that he did not see a piece of material, which was being hoisted during the construction of a building, strike a rod which fell upon and killed the plaintiff’s intestate, and has been asked whether at a former trial of the case he did not testify that he did see a collision, it is reversible error to admit his testimony on the former trial, for it is not competent either as primary evidence, or to impeach the witness.
    A contractor engaged in the erection of a building cannot be held liable upon the ground that its servant was negligent in failing to warn the servant of another contractor, also made defendant, that an act in which the other servant was engaged was dangerous, or for not taking steps to minimize or prevent such danger, especially where the danger of the act only became apparent the moment before the accident happened.
    Separate appeals by the defendants, Smith Hoisting Company 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 Kings on the 20th day of March, 1914, upon the. verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of March, 1914, denying defendants’ motion for a new trial made upon the minutes.
    
      
      James S. Darcy, for the appellant Smith Hoisting Company.
    
      William B. Davis, for the appellant Milliken Brothers, Inc.
    
      Philip A. Brennan [Frederick S. Lyke with him on the brief], for the respondent.
   Thomas, J.:

A large force of men were making a building. The fourth floor was only in iron frame, the parts of which made subdivisions called panels. The one in question was some seventeen feet long in a north and south direction and six and a half feet wide. Defendant Milliken Brothers’ servant, Watson, facing south, sat on the easterly longitudinal beam called a filler-in beam — one that ran between two girders. Molasky, the servant of the Smith Hoisting Company, stood facing easterly on the opposite side, one foot on the westerly filler-in beam, and one foot on a'board that had been placed across the panel, in which position he was drawing up by means of a rope a wooden head piece of an elevator. It was variously stated to be seven feet and ten feet in length and weighed about a hundred pounds, perhaps less. As it was drawn up to him, he turned it across his leg to land it on some boards spanning the panel, and, as the jury has found, it came into contact with some tie rods placed diagonally across the northwesterly or northeasterly corner of the panel, whereby they were caused to fall — one upon the plaintiff’s decedent, causing his death • Watson shortly before had placed four tie rods across the corner, but had taken one for the purpose of inserting it in the panel, while the others were left behind him to be taken one by one and connected as Watson progressed with his work. Winkky, then Watson’s coservant, was sitting on the same beam on which Molasky stood, but at the south end of it, facing west as I infer, which brought Molasky about seven feet from him, and so between him and .the tie rods, while, as this witness states, Watson was on the other filler-in beam across from that on which -Molasky stood. Winkky says that he saw the head piece hit the tie rod which fell upon the man on the story below. This is the entire legal evidence that the head piece collided with a tie rod. Molasky testified that he did not hit the tie rod and so placed himself with reference to it as to make contact improbable, and he receives some support from Johnson, who, on the third floor, tied on the head piece' and watched it ascending. Watson saw Molasky raising the head piece, but did not see the collision, as he might not, as the tie rods were behind him -or maybe behind and to the right of him in the northwest corner. But the fact beyond doubt is that the tie rod fell in the course of landing the head piece. The testimony of the witnesses is in inextricable confusion. Watson as a witness on three trials places himself on the western filler-in beam, and later on this trial, after the same evidence, shifted himself to the eastern beam. He placed Molasky on the same beam as himself, and although he relocated himself on the easterly beam, he seems to have kept with him Molasky. Watson also placed the tie rods in both the northeasterly and northwesterly corners. Winkky said that he was on the same beam as Molasky, but not on the same beam as Watson, but in the “southeast corner of this elevator opening,” which would tend to put him on or near the same beam as Watson. Molasky states that he was on the west beam. Ho one can reconcile the statements. The learned counsel for the Smith Hoisting Company urges, with much force, that the location of Molasky was such that the head piece was not long enough to come in contact with the tie rods, which were close to whatever corner they crossed and invaded the space by about one foot. But Molasky had raised six or seven planks, which, as I understand, made the flooring. He said that when he was pulling up the head pieces, he was standing “on the south corner and the west beam.” But at an earlier trial he testified that he “had planks across the middle of” the opening. Winkky testified that Molasky was “about six — about seven feet away ” from him, and that he was not across the panel from him. That would bring Winkky in the southwest rather than the. southeast corner. Watson says that a board was across the panel north of the middle of the panel. He was asked, “ Molasky was standing at least six feet away from these tie-rods, was he not ? A. Somewhere around there, more or less, less I should judge,” and judges that the head piece was about seven feet long, and he said that it grazed the outside of his right leg, which it could not have done if he was on the west beam. Watson also testified that the tie rods extended a little over a foot into the panel, and that they were “probably three feet away ” from him, or four feet. He says that Molasky was about two feet south of him. I am unable to conceive, upon the statement of distances given, how Molasky handled the head piece, even ten feet long, and weighing a hundred pounds, so as to hit the tie rods. But estimates of distances are often so incorrect that it is not always safe to dispute, by calculations founded on them, the definite statement of a witness that he saw the contact of the head piece with the rod. But the examination of Watson by the plaintiff, who called him, was so erroneous that the finding of the jury against the Smith Hoisting Company cannot stand. Watson testified on this trial that he did not see the head piece strike the rod, but saw the head piece raised; the process of landing it, whereby his leg was grazed, and the fall of the rod on the plaintiff’s decedent. Thereupon he was asked whether upon the first trial he did not testify that he actually saw the collision, and later the testimony given on the former trial was received generally and probably adopted by the jury as primary evidence or to impeach the witness. In either view it was clearly inadmissible and it certainly was harmful. The jury has also found the Milliken Company negligent in that Watson, “ at about the time when Molasky started to raise the ” head piece, was warned that the work upon which Molasky was engaged took on a dangerous aspect, “which should have warned Watson of the possibility of an accident resulting from contact between the beam and the tie-rods,” and in that he “did not give warning against the possible contact between the beam and the tie-rods.” The court charged, “Ask yourselves, under all the circumstances of the case, whether Watson was negligent, because in your opinion with the exercise of reasonable care he should have seen the danger and should have given warning against the danger, or should himself have made some efforts to minimize or prevent the danger.” The Smith Company has been found negligent because its servant let the head piece collide with the tie rods, and the Milliken Company because Watson did not appreciate that there was danger from Molasky’s manner of handling the head piece, and warn him of the danger or make “ some efforts to minimize or prevent the danger.” Accordingly, the rods were not negligently deposited; they would not have fallen unless hit; with ordinary care Molasky could have raised the head piece without disturbing the rods, and yet Watson should have in prudence foreseen that Molasky might through his negligence possibly hit the rods, and have grasped the situation and tried to avert the results by outcry or action tending to counteract the other’s conduct. I discover no reason for such watchfulness by Milliken’s servant of Smith’s servant lest the latter should be negligent. The jury must, in considering Molasky, have found that he had room enough to act prudently. Indeed, it is urged here that the space was so abundant that he could not have touched the rods with the head piece. There were nearly seventeen feet of space within which to land a stick ten feet long fastened four feet from its end. It was a matter of seconds to turn the stick over the servant’s leg, and yet at that precise time, if ever, the peril appeared. The head piece arose, was turned over, grazed -Watson’s leg and passed behind him and hit the rods, if indeed it did hit them. But Watson, it is found, should have conceived, in a period briefer than the swift happening, the impending danger, and with priority of word or action stayed or attempted to stay the negligent thrust of the head piece, or he should have noticed that Molasky was drawing up the head piece and have seen the danger of his final negligent handling and have told him to beware, or have done something — too indefinite to be suggested. The record, it is thought, does not permit such burden to be placed upon one servant to guard against the consequences of the negligent act of another, done or portending.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Bioh and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  