Mary G. Devine, as Administratrix, etc., of William J. Devine, Late of the City of Rensselaer, New York, Deceased, Appellant, v. Thomas J. Hayward, Respondent

Mary G. Devine, as Administratrix, etc., of William J. Devine, Late of the City of Rensselaer, New York, Deceased, Appellant, v. Thomas J. Hayward, Respondent. Third Department, November 11, 1908. Master and servant — negligence — injury to employee while moving metal plate — evidence raising questions for jury. Action under the Employers’ Liability Act. The plaintiff’s intestate was employed to assist in the erection of a gasholder which involved the moving of metal plates Weighing about three tons by means of a skid made of two stringers separated by crosspieces. During this process one of the .plates became displaced on the skid," and the intestate was ordered by another employee to strike the center crosspiece while the person giving that order was endeavoring to pry the plate into position from the other side, with the result that it fell and killed the intestate. It appeared from the evidence that the person who was prying the plate and who gave the order to strike the crosspiece was the leader or “boss” of the gang, gave directions in the absence of the superintendent, and was paid a much higher salary than the other employees, who were bound to obey him. On all the evidence, Meld, that it was error to dismiss the complaint on the ground that the accident was caused by the act of a fellow-servant while engaged in a detail of the work; That it was for the jury to say whether it required an act of superintendence to decide upon the method of replacing the plate upon the skid, and whether the act of the “ boss” in directing the intestate to strike the crossbar was one in the exercise of superintendence and negligent under the circumstances; That the question of contributory negligence was for the jury. Appeal by the plaintiff, Mary G. Devine, as administratrix, etc., from a judgment of the Supreme Court in. favor of the defendant, entered in the office of the clerk of the county of Albany on the 24th day of May, 1907, upon, the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term. The action is for damages for the alleged negligent killing of the plaintiff’s intestate. It is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The defendant was engaged in the erection of a gasholder 150 feet in diameter, designed to hold about 2,000,000 cubic feet of gas. ' The foundation and bottom of the holder had been completed, and work had been com menced in the erection of the shell or side plates. While moving one of these plates it fell, causing the death of the plaintiff’s intestate. The plate was being moved upon a skid made of two stringers of spruce four inches by six inches and sixteen feet long. Hailed to these and separating them about five feet apart were three crosspieces of spruce plank two inches thick -by nine inches wide and about five feet in length, one fastened near either end of the stringers and the other in the center. There was what is known as an “ A ” frame in the center,, made of two upright pieces of plank two inches thick, nine inches wide and about five feet long, attached with nails at the bottom to the center crosspiece, and of two boards one inch thick and six inches wide running from near the top of each of the uprights to the opposite end of the center crosspiece and nailed at each end. The center crosspiece projected beyond the stringer upon one end about three or four inches. The plate which fell while being moved was twenty-nine feet six inches long, about four and one-half feet wide, one and one-thirty-second inches thick, and weighed about three tons. It had a curvature of about twenty-two degrees with a seventy-five foot radius so that if a straight line were drawn between the ends of the plate it would pass about two feet from its center. The plate was placed on its edge on one side of the skid leaning against the “ A ” frame and lashed with a rope passing through bolt holes near the center at the top, to the top of the two uprights and resting at the bottom in the center upon the projecting crosspiece and near the ends upon the other two, crosspieces. The whole load was being moved by the aid of three rollers five or six inches in diameter under the stringers. These had to roll over the projecting bolt heads about three-eighths of an inch high in the iron plates forming the finished bottom of the tank which Caused a considerable jarring of the load. The work was in charge of one Mason, the superintendent of the defendant, and one Brennan who was the foreman under him. There were about twenty-five men engaged in the construction of the tank. These Were divided into several gangs performing different parts of the work. One Hilt was the leader or “ boss” of the gang in which the deceased worked. Several plates had been moved and placed in position without accident. The plate in question was being moved on the skid and rollers by the men pulling on a rope attached to one end of the plate. When it had been moved about seventy-five feet it was found that it had been jarred off the projecting end of the crosspiece at the center upon which it had rested. When Hilt saw that it was off, he and some of the men were trying on the outside, by the use of bars, to pry it back on the crossbeam. At that time, according to plaintiff’s evidence, Hilt told Devine to go inside and drive or hammer down the center crosspiece, which had become loosened from the stringer by the nails drawing out. The order was obeyed by Devine, and after striking one or more blows with a mall where he was directed to, the plate fell upon him, causing his death. At the time when Devine was striking the blow on the inside, Hilt and others were on the outside, prying the plate with crowbars, and it was at that moment that the plate fell and crushed Devine. The court at the close of all the proofs in the case dismissed the complaint on the ground that it was the act of Hilt in prying on the plate which apparently threw the pressure on the upright and caused the accident, and that that was an act not of superintendence, but of a co-employee in the performance of a detail of the work. Richard O. Bassett, for the appellant. Joseph P. Coughlin, for the respondent. [MAJORITY — Chester, J.:] Chester, J.: The complaint having been dismissed, the plaintiff is entitled to the most favorable inferences fairly deducible from the testimony. There was some conflict in the evidence as to just what caused the accident; whether it was the act of Hilt in prying upon the outside of the plate, or of Devine in striking upon the crosspiece of the skid on the inside, or whether it was caused by the two acts combined. There was sufficient to justify the inference that the plate fell as a result of the combination of the two acts. The proof is undisputed that the superintendent, Mason, was not at the job when the accident happened, and there is some conflict in the evidence as to, whether or not Brennan, the foreman, was there at that time. Brennan himself says that he was on the job about fifty or sixty feet distant at the time. The witnesses for the plaintiff testified that- he was not there, but came soon after the accident happened. There is also a conflict in the testimony as to whether Hilt was acting as superintendent in the absence of Mason and of Brennan. The defendant insists that Hilt was employed at the same time Devine was to do the same kind of work, and that he had no authority over the men working with him, .but because of his age and previous experience he was generally accepted by the men as their leader. Under the defendant’s theory he was what they called a “ pusher ” of one .of the gangs, and not intrusted with superintendence. Under the plaintiff’s evidence it was Hilt who was “ boss ” in the absence of Brennan, and who gave all the directions to the men. It tended to show that he had full power in such absence to decide what should be done when the plate fell'from the skid, and to direct the men as he saw fit what methods should be employed in replacing it. He received four dollars a days and Devine received from two dollars to two dollars and twenty-five cents a day. Even Brennan testified for the defendant that the men had to mind 'Hilt and him, and if they did not, they had to get off the job, and that when he was not there in Hilt’s gang the men did what Hilt told them to do. Upon the foregoing evidence it appears to us that the case was for the jury in the first instance, and that the court could not say as a matter of law that the accident was caused by the act of Hilt, a fellow-servant of the deceased, while ■ engaged in a detail-of the work. The accident did not happen when the skid and plate were being rolled along in the usual manner, but the plate had become partially displaced from the skid so that it could not be moved further until it had been replaced in position. It was an unwieldy piece of iron weighing three tons, and difficult to handle. The jury could have .found that it required an act of superintendence to decide upon and direct the method of getting the plate back upon the skid, so that the rolling of it along into its place could be again proceeded with, and that the act of Hilt in directing Devine to strike upon the crossbar in an effort to consummate the method the former had decided upon for doing that work was an act in the exercise of superintendence done by the authority of the defendant in the absence of Brennan, if They found that he was absent. It was also for the jury to say whether such act was a careless or negligent one under the circumstances. If it should appear upon the trial that the accident was caused by the concurrence of a negligent act of the defendant and that of a fellow-servant the defendant would, under the authorities, be liable. (Stringham v. Stewart, 100 N. Y. 526, and cases there cited.) We think also the question whether the decedent was guilty of contributory negligence was for the jury. ■■ The judgment should'be reversed and a new trial granted, with costs to the appellant to abide the event. * All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.