
    Frank Williams, Respondent, v. Citizens’ Steamboat Company of Troy, New York, Appellant.
    Third Department,
    November 13, 1907.
    Master and servant —negligence — injury by fall of box — Employers’ Liability Act — master liable only when principal duty of employee is superintendence.
    When a box placed so as to lean against the side of the gangway, of a steamboat moored to a dock falls without outside interference it may be presumed that the fall was caused by reason of its being insecurely fastened.
    The placing of such box by an employee engaged in unloading a steamboat is a mere detail for which the master would not be liable- at common law, but only under the Employers’ Liability Act, if the placing .were the act of one exercising superintendence. - . ■ .
    Under the Employers’- Liability -Act the negligence of an employee is not chargeable to the master unless his “sole and principal duty’’ be that-of superintendence.
    Although a master may have several employees whose sole and principal duty is superintendence, yet á master is not liable for the negligence of -an employee who is clothed only with some powers of direction in the absence of the regular . superintendent, when it. does not appear that the regular superintendent was absent from the-work at the time.
    The liability created by the. Employers’ .Liability'Act is in derogation of the common law and the act should be strictly construed....
    
      . Appeal by the defendant, the Citizens’ Steamboat Company of Troy, New York, from a judgment of the Supreme Court in favor of the plaintiff, entered' in the office of the- clerk of the county of Rensselaer on the 24th day. of January^ 1907, upon the verdict of a. jury for $6,000, and also from an order entered in said clerk’s office on the 6th day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Murray Downs, for the appellant.
    
      Andrew J. Nellis,, for the respondent.
   Smith, P. J.:

The action is brought under, the Employers’ Liability Act; the verdict was for $6,000. The claim of negligence is the negligence of one claimed to have been acting as the superintendent of uthe defendant.

The defendant operates a steamboat line between New York and Troy. At the docks in Troy there is a passageway, which is called a gangway, from the boat to the freight rooms of the defendant. From the boat to the passageway is a bridge that is placed when the boat is moored to the dock. That bridge is secured by four ropes ; two of the ropes were attached to. the sides'of the passageway and the other two attached to the boat itself.

Upon the morning of the oth of August, 1904, the defendant was unloading freight at. its dock in Troy. A large box about ten feet long, about eight feet broad and ten. inches or a foot thick, was on the boat to be unloaded. ; At the direction of one Vandervolgen, who was confessedly the superintendent of the. defendant, the box was placed in the gangway and leaned up against the side thereof.. For some reason the box afterwards fell. After it had fallen, under the charge of. one Vandeflieyden, the box was again put in place against the side of. the gangway, the bottom being pulled out a little further than it was as it was first placed, for greater stability. This box afterward fell, however, and injured the plaintiff, who. was one of the freight handlers or longshoremen. in the employ of the defendant.

Plaintiff can only recover if the negligent placing of this box was the act of the superintendent of defendant. If this were a common-law- action the negligence lias been in a detail,of the. work, and the place been made unsafe in the prosecution of the work, and for this the master is not liable. (Citrone v. O’Rourke Engineering Const. Co., 188 N. Y. 339 ; Russell v. Lehigh Valley R. R. Co., Id. 344; Cullen v. Norton, 126 id. 1 ; Brown v. Terry, 67 App. Div. 223.) It is not distinctly shown as .to what caused the box to fall. Thé boat at the dock would move a little back and forth, causing some movement of the bridge and of the ropes which held the bridge to- the sides of the gangway. It is thought that' these ropes may have dislodged the box from its position sufficiently to cause it to fall over. The . evidence justifies the finding.. that. it might have been caused that way, or the box might have been thrown over by a 'strong gust of ■ wind coming through the gangway. I am inclined to think that the falling of a box, .which, was subject to.no' outside interference, would be presumptive evidence of' its being insecurely fastened. There is evidence that if a chock had been put under the. edge of -.the box it woujd not have fallen. Of course that would .depend somewhat upon the size of the chock. There is some evidence that a'scantling, was put under the edge of the box by Vanderheyden when he caused the box to be replaced after it had once fallen ; but if so that chock became dislodged, or was not large enough to prevent the box from falling. The evidence is, I tliink,. sufficient from which the jury can find that there was negligence in the placing .of that box.

The next cpiestion, and the most'Serious one, is whether "Vanderheyden, who superintended the placing of the box' the second time, was such a superintendent-of the company as that his negligence was the negligence of the company. The Employers’: Liability Act (Laws of 1902, chap. 600) makes the defendant liable for the negligence of. one “exercising superintendence, whose■ sole ■ or principal duty is that of-superintendence) or in the absence of such superintendent, of any person acting as superintendent with the authority or:consent of such employer.”. The learned court charged the jury as follows: “So in this .particular case, if one of their superintendents were' negligent at all,, that negligence is said to be the negligence of .the defendant. . So' you imist have- in mind all the time when I speak of the negligence of the defendant, the negligence of some one of its superintendents, somebody having authority to do what was done, and about which complaint, is now made here.” At the close of the charge this colloquy took place between the court and the attorneys: “Mr. Holmes (defendant’s attorney): I ask your Honor to charge that William Vanderheyden was not representing the steamboat company, the defendant, if-the box was put up when John Vandervolgen was there upon the work, present on the work. The Court: I decline. Defendant excepts. The Court: If yon mean by that that when John Yandervolgen was actually standing by, I would so charge. Mr. Holmes: I mean by that when he was present upon the' works and directing the works himself. Mr. Nellis (plaintiff’s attorney): The works were very large. He might be way off. . The Court: The works were very large, and if John Vandervolgen was even then engaged somewheres on the boat and knew nothing about the matter, about putting this up, but it was directed and superintended by William Vanderheyden, I charge that his acts were actually the acts of the defendant. Defendant excepts.”

The 6th request to charge by the defendant was as follows: “ That there is no proof that the box in question was set up in the gangway by the superintendent of the defendant, or any person entrusted with and exercising superintendence, whose sole and principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or consent of the defendant.” This request the court declined to charge, and exception was given to the defendant.

The 24th request to charge was as follows : “ That if you shall find that the box in question was placed in the position it was under the direction of William Yanderheyden, when the superintendent, John Yandervolgen, was present on the works, the plaintiff cannot recover.” This request was denied, and an exception taken.

The 25th request to charge was :' “ That there is no proof that. William Yanderheyden had any authority to exercise acts of superintendence when John Yandervolgen was on the works.” This request to charge was denied and the defendant was given an exception.

It is-undoubtedly true that a master may have several superintendents whose sole and principal duty is that of superintendence. In such a case the act of any one of such superintendénts is under the Employers’ Liability Act chargéd to the master. It is also true that in any large enterprise it is impossible for the superintendent to give his personal attention to all matters of detail, and much is left to the discretion and good judgment of the workmen themselves. In the prosecution of such work one employee may perhaps give direction as to the detail of the work. To whatever extent, however, he may superintend this, specific work given him in charge his act of negligence is not chargeable to the master unless Ms sole or principal duty be that of superintendence. It seems that in the casé at bar the learned' trial judge has allowed the plaintiff to recover for the negligence of Vanderheyden, while the superintendent Vandervolgen was not absent from the works, and without any proof to justify a finding that Vanderheyden was an employee whose sole or principal duty was that of 'superintendence. That may have been his position in the absence of Vandervolgen, bu.t not when Vandervolgen was present. Under the evidence he was an ordinary employee when Vandervolgen was present upon the works with súme power of direction.' That seems to me the most that can be said of his superintendence.

The liability created by the Employers’ Liability Act has been held by this court to be in derogation of common law and the act is subject,, therefore, to strict construction. (O'Neil v. Karr, 110 App. Div. 571.) Under the charge of the court the defendant has been made liable for the negligence of a mere • coemployee, for which it is not liable either under the common law or under the Employers’ Liability Act. For this error the judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred; Cochrane, J., in result.

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