
    Annie McDonnell, as Administratrix, etc., of James J. McDonnell, Deceased, Respondent, v. Metropolitan Bridge and Construction Company, Appellant.
    Second Department,
    March 19, 1909.
    Master and servant — negligence — death by fall of derrick — proximate cause — burden of proof — verdict founded on speculation.
    Where an employee engaged in erecting a derrick was killed by the fall of the structure owing to the fact that a leg of the derrick, while being hoisted to the" top of the mast where the decedent was stationed, fell against another leg which had already been put into place causing it to break and bring the whole structure to the ground, there can be no recovery based upon the fact that there was dry rot in the center of the leg which broke. This, because the dry rot was not the proximate cause of the accident which might have happened in the same way had the wood been sound.
    The burden of. showing that the negligence charged was the proximate cause of the in j ury is on the plaintiff and must be established by evidence, not left to surmise or conjecture.
    Evidence examined, and held, that the plaintiff failed to establish that the defendant was negligent or the decedent free from contributory negligence, and a finding that the defective timber caused the accident was based on pure speculation.
    Hirschberg, P. J., dissented.
    Appeal by the defendant, the Metropolitan Bridge and Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of July, 1908, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 13th day of July, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      lynn W. Thompson [Hector M. Hitchings with him on the brief], for the appellant.
    
      George F. Hickey [M. P. O'Connor with him on the brief], for the respondent.
   Burr, J.:

James J. McDonnell was employed by the defendant. On the 26th day of December, 1907 he was engaged with other employees of the said, defendant in erecting a derrick. The derrick was composed of three heavy pieces of timber, one upright timber known as the mast, which was twelve inches wide by twelve inches thick, and two supporting timbers known as the stiff legs, which were ten inches wide by ten inches thick. The mast had been set up, and one of the stiff legs had been placed in position and secured to it, and the other stiff leg was being raised up to the top of the mast for the purpose of being so secured, when the whole structure fell, carrying McDonnell, who had been raised to' the top of the mast for the purpose of fastening the stiff legs in place, down to the ground. After the fall of the derrick, the stiff leg which had been attached to the mast was found broken into three pieces, one of which had struck McDonnell in the head, causing his death. The'evidence introduced on the part of the plaintiff failed to establish that the fall of the derrick was due to any negligence on the part of the defendant. It was conceded that the only possible basis for such claim was that the stiff leg, which after the accident was found to be broken, gave evidence of dry rot in the center thereof. The weight of the evidence in the case was clearly to the contrary, but conceding that there may have been sufficient evidence to make it proper to submit this question to the jury, it does not affirmatively appear that this was the proximate cause of the injury which resulted in McDonnell’s déatli. The only witnesses called for the plaintiff who pretend to give an accurate account of the manner of the happening of the accident were Francisco Caulo and Giuseppe Sernicola. They both agree in substance in stating that the stiff leg which was being raised to the top of the mast fell over against the other stiff leg, bringing it and the mast down to the ground. The other witnesses called for the plaintiff admit that the first thing that attracted their attention was the crash or break as the derrick fell. The witnesses called for the defendant who saw the accident also testify that it was the swinging of the boom and the stiff leg which was being raised.into position against the other.stiff leg and the mast which brought the whole structure to the ground. As compared with the weight which the derrick was intended to lift and which prior to the time- of the accident it had safely lifted, the weight and consequent strain upon the mast and stiff leg then in position was insignificant. If the wood had been perfectly sound; precisely the same result might have followed which did follow in this case. The burden of proof that the negligence complained of was the proximate cause of the injury resulting in her intestate’s death was on the plaintiff. This must be established by evidence, and cannot be left to surmise or conjecture. (Larson v. St. Paul & Duluth R. R. Co., 43 Minn. 488; Chesapeake & Ohio R. R Co. v. Heath, 103 Va. 64; Kelsey v. Jewett, 28 Hun, 51; 1 Thomp. Neg. [2d ed.] § 45.) It was pure speculation on the part of the jury that the defective timber (conceding it for the sake of the argument to be such) had anything to do with the death of plaintiff’s intestate. It was the fall of the structure, and not the breaking of the timber, which caused his death. The evidence strongly indicates that the fall of the derrick was caused by the negligence of McDonnell himself. Whether it was due to that, or to the negligence of his fellow-servants, or whether it was an unavoidable accident, the defendant was not responsible for it. The plaintiff failed to establish either the negligence of the defendant, or the freedom from contributory negligence of her intestate, and the motion to dismiss the complaint should have been granted.

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

Woodward, Jenks and Gaynor, JJ., concurred; Hirsohbero, P. J., dissented.

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