William E. Lowrey, Appellant, v. The Huntington Light and Power Company, Respondent

William E. Lowrey, Appellant, v. The Huntington Light and Power Company, Respondent. Second Department, July 23, 1907. Master and servant—Employers’ Liability Act—when foreman not engaged in superintendence. The Employers’ Liability Act creates a liability against, the master for acts bf a superintendent only when the latter is engaged in an act of superintendence. A foreman of a gang of men engaged in trimming trees so as to permit the stringing of electrical wires, who does not devise the method of trimming the trees or give any instructions other than pointing out the trees to be trimmed, is not engaged in an act of superintendence while holding a rope used to lower a severed limb to the ground, and his master is not liable for injuries received by reason of the limb swinging so as to injure an employee. Hirschbehg, P. J., dissented. Reargument of an appeal by the plaintiff, William E. Lowrey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 31st day, of January, 1906, upon the dismissal of the complaint by direction of the court after a trial at tlie Kings County trial term. (See 119 App. Div. 875). The plaintiff was an employee of the defendant as one of a gang of'five men trimming trees so as to admit the stringing of the defendant’s electrical .wires. Slackbower was foreman of the gang and pointed out a tree for trimming. The plaintiff-and'another, climbed that tree^ attached a rope to a limb and .cast the rope over a crotch of the tree above-the limb, so that the loose end of. tlie,rope dropped, to the ground. - They then sawed off this liinb, which fell or rested upon a lower and larger limb. Then they sawed off.this larger and lower limb, to .which was attached another rope, passing through the crotch and then dropping to the ground. When the larger and lower limb fell, Slackbower, -who, standing upon the ground-, had hold of the loose end- of the rope attached to the higher limb, held the rope taut. Consequently thejiigher limb did not fall with its support, the lower limb, but was suspended in the air.. It swung towards the trunk of the tree wherein the plaintiff stood, and in seeking to avoid the limb the plaintiff fell, to the ground, and was injured. ■ Herbert G. Smyth [Frederic C. Scofield and P. Henry Delehanty with him on the brief], for the appellant.' Alfred A. Wheat [Theodore H. Lord with him on the brief], for the resjiondent. [MAJORITY — Hooker, J.:] Hooker, J.: In Hope v. Scranton & Lehigh Coal Co. (120 App. Div. 595) the cases Were reviewed, and we reached the conclusion that the Employers’ Liability Act (Laws of 1902, chap. 600) must be construed to create a liability against the employer for the acts of .a superintendent only when .lie is-engaged in an act of superintending.' -Without the. aid of the statute the plaintiff in this case must fail because of'the negligence of -the coservant, Slackbower. The question then is,- was Slackbower- superintendent, and if so,, was' his negligence, supposing it' was the proximate cause' of the injury, committed while .he was in theact-of superintending? It does not appear that he devised the method of trimming the tree or that he gave any instructions or orders in the doing of that. work. He merely held the - rope -attached to the smaller limb, as two other Workmen' hold the rope attached to the larger. The directions that were given Were- not by him but. rather to him, for the plaintiff called out tó him. not' to hold the rope taut but to “let the rope go” in order that the.limb might fell to the ground. The rule suggested in the Hope case as a test of acts of superintendence is that unless the act itself is One of direction or of oversight, tending to control others and to vary their situation or action because Of his direction, it cannot fairly be said to be one in the doing of which the person intrusted with superintendence is in the exercise of superintendence, Slackbower’s superintendence consisted in designating the tree to be trimmed, and from aught that appears this is all he did of direction or oversight. Flynn v. Boston Electric Eight Co. (171 Mass. 395) is in many .respects similar to the case at bar. There the men, were stringing an electric light wire through a tree and Grant, the foreman, át a certain time in the work ordered the wire to be pulled, and himself helped in the pulling; the wire caught, and plaintiff shouted to stop, but he was hurt.,' It was held that Grant was but a coservant in this work of pulling, and was not engaged in any act of superintendence, and the plaintiff’s exception to the direction of a verdict for the defendant was overruled. The judgment appealed, from must be affirmed, with costs. Woodward, Jerks and Miller, JJ., concurred; Hírschberg, P. J,, dissented. - Judgment affirmed on reargument, with costs.