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(Theodore Connoly and Terence Farley, of counsel), for appellant. Augustus Van Wyck and

TITLE GUARANTEE & TRUST CO. 5. Jacob Friedman, for respondent.

MONTICELLO LAND & IMPROVEMENT PER CURIAM. Order affirmed, with costs.

CO. et al. (Court of Appeals of New York. Question certified answered in the affirmative.

Jan. 9, 1906.) Appeal from a final judgment, CULLEN, C. J., and GRAY, O'BRIEN,

entered June 21, 1904, in favor of respondent BARTLETT, HAIGHT, VANN, and WER

herein, entered upon an order of the Appellate NER, JJ., concur.

Division of the Supreme Court in the Second
Judicial Department (62 App. Div. 620, 71
N. Y. Supp. 1150), affirming an interlocutory

judgment in an action for the foreclosure of two THOMPSON, Appellant, V. METROPOLI

mortgages. Paul E. Jones and Frank C. Avery, TAN ST. R. CO., Respondent. (Court of Appeals of New York, Jan. 9, 1906.) Appeal from

for appellant. Gratz Nathan, for respondent. a judgment of the Appellate Division of the Su

PER CURIAM. Judgment affirmed, with preme Court in the First Judicial Department

costs. (103 App. Div. 595, 92 N. Y. Supp. 1147),

CULLEN, C. J., and GRAY, O'BRIEN, entered March 18, 1905, affirming a judgment

BARTLETT, HAIGHT, VANN, and WERin favor of defendant entered upon a dismissal NER, JJ., concur. of the complaint by the court at a Trial Term. L. Laflin Kellogg and Alfred C. Petté, for appellant. Joseph F. Daly, Bayard H. Ames, and

TOLMIE, Appellant, v. FIDELITY & CASHenry A. Robinson, for respondent.

UALTY CO. OF NEW YORK, Respondent. PER CURIAM. Judgment affirmed, with

(Court of Appeals of New York. Jan. 30, costs.

1906.) Appeal from a judgment of the Appel

late Division of the Supreme Court in the CULLEN, C. J. and O'BRIEN, BART.

First Judicial Department (95 App. Diy, 352, LETT, HAIGHT, VANN, and WERNER, JJ.,

88 N. Y. Supp. 717), entered June 29, 1904, af. concur. GRAY, J., not sitting.

firming a judgment in favor of defendant entered upon a verdict directed by the court and an

order denying a motion for a new trial. L. THOMPSON, Respondent, v. THOMPSON, Laflin Kellogg and Alfred C. Pette, for appel. Appellant. (Court of Appeals of New York.

lant. Edwin A. Jones, for respondent. Jan. 9, 1906.) Appeal from a judgment of the

PER CURIAM. Judgment affirmed, with Appellate Division of the Supreme Court in the

costs. Third Judicial Department (90 App. Div. 618, 85 N. Y. Supp. 1148), entered January 13, 1904,

CULLEN, C. J., and O'BRIEN, HAIGHT, affirming a judgment in favor of plaintiff en

VANN, WERNER, BARTLETT, and HIS tered upon a verdict and an order denying a

COCK, JJ., concur.
motion for a new trial. Harvey D. Hinman and
A. M. Sperry, for appellant. W. J. Welsh and
F. W. Welsh, for respondent.

TOOMEY, Respondent, v. GRAF et al., AD PER CURIAM. Judgment affirmed, with

pellants. (Court of Appeals of New York.

Feb. 16, 1906.) Appeal from a judgment of costs. CULLEN, C. J., and O'BRIEN, BART

the Appellate Division of the Supreme Court in

the Fourth Judicial Department (100 App. Div. LETT, HAÍGHT, and WERNER, JÍ., concur. 512, 91 N. Y. Supp: 1116), entered February 1, GRAY and VANN, JJ., dissent.

1905, affirming a judgment in favor of plaintiff

entered upon a verdict and an order denying & THURSTON, Respondent, V. LEHIGH

motion for a new trial. Robert Cooper, for apVALLEY R. CO., Appellant. (Court of Ap

pellants. Delmar M. Darrin, for respondent peals of New York. Jan. 9, 1906.) Appeal

PER CURIAM. Judgment affirmed, with from a judgment of the Appellate Division of

costs. the Supreme Court in the Third Judicial De CULLEN, C. J., and GRAY, O'BRIEX, partment (96 App. Div. 631, 89 N. Y. Supp. BARTLETT, WERNER, and CHASE, JJ., 1118), entered July 7, 1904, affirming a judg concur. HISCOCK, J., not sitting. ment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. J. M. Brainard, for appellant. F. W. Clifford, TOWN OF SOUTHOLD, Appellant, F. for respondent.

PARKS et al., Respondents. (Court of Appeals PER CURIAM. Judgment affirmed, with of New York. Nov, 21, 1905.) Appeal from costs.

a judgment of the Appellate Division of the CULLEN, C. J., and GRAY, O'BRIEN,

Supreme Court in the Second Judicial DepartHAIGHT, VANN, and WERNER, JJ., con

ment (97 App. Div. 636, 90 N. Y. Supp. 1116), cur. BARTLETT, J., absent.

entered October 21, 1904, affirming a judgment in favor of defendants entered upon a dismissal

of the complaint by the court at a Trial Term TINDLE et al., Respondents, v. BIRKETT, without a jury. Henry A. Forster and Asa A. Appellant. (Court of Appeals of New York. Spear, for appellant. Herbert L. Fordham and Jan. 16, 1906.) Motion to amend remittitur.

Timothy M. Griffing, for respondents. See 183 N. Y. 267, 76 N. E. 25.

PER CURIAM. Judgment affirmed, with PER CURIAM. Motion granted, and re

costs. mittitur amended by inserting therein the fol CULLEN, C. J., and BARTLETT, HAIGHT. lowing words: “This judgment is rendered VANN, and WERNER, JJ., concur. GRAY solely upon the ground that the discharge in and O'BRIEN, JJ., absent. bankruptcy granted by the United States District Court for the Northern District of New York, on the 12th day of December, 1899, pur. TUCKER, Respondent, V. EDISON ELECsuant to an act of Congress entitled 'An act to TRIC ILLUMINATING CO. OF NEW YORK, establish a uniform system of bankruptcy | Appellant. (Court of Appeals of New York. throughout the United States, approved July i, Feb. 27, 1906.) Appeal from a judgment of the 1898,' is a bar to the prosecution of an action Appellate Division of the Supreme Court in the to recover upon any of the causes of action First Judicial Department (100 App. Div. 407, alleged in the complaint: the decision of the 91 N. Y. Supp. 439), entered January 14, 1905, trial court having been examined and having affirming a judgment in favor of plaintiff enbeen found to be correct in all other respects." | tered upon a decision of the court on trial at

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Special Term. Henry J. Hemmens and Samuel A. Beardsley, for appellant. George J. McEwan and Frank M. Hardenbrook, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT, and CHASE, JJ., concur.

VAN DE CARR SPICE CO., Appellant, v. COOK et al., Respondents. (Court of Appeals of New York. Jan. 9, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (93 App. Div. 606, 87 N. Y. Supp. 1150), entered March 25, 1904, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. Percival De Witt Oviatt, for appellant. Joseph W. Taylor, for respondents.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur.

TURNER, Respondent, V. DEGNON-McLEAN CONTRACTING CO., Appellant. (Court of Appeals of New York. Feb. 13, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (99 App. Div. 135, 90 N. Y. Supp. 948), entered January 4, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. Herman Aaron, for appellant. Charles Caldwell, for respondent.

PER CURIAM. Judgment affirmed, with costs, on prevailing opinion below.

CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, WERNER, BARTLETT,' and HISCOCK, JJ., concur.

VASSILEADES et al., Respondents, V. STEEPLECHASE CO., Appellant. (Court of Appeals of New York. Jan. 16, 1906.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (108 App. Div. 356, 95 N. Y. Supp. 1164), entered October 23, 1905, affirming a judgment in favor of plaintiffs entered upon à verdict and an order denying a motion for a new trial. The motion was made upon the grounds that the Appellate Division unanimously decided that the verdict was supported by the evidence and that the exceptions were frivolous. Robert B. Knowles. for the motion. Henry E. Heistad, opposed.

PER CURIAM. Motion denied, with $10 costs.

UIHLEIN et al., Respondents, V. MAT. THEWS, Appellant. (Court of Appeals of New York. Jan. 9, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (93 App. Div. 57, 86 N. Y. Supp. 924), entered March 16, 1904, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at an Equity Term and granting a new trial. George E. Milliman, for appellant. Henry M. Hill and Scott Cummings, for respondents.

PER CURIAM. Order affirmed, and judg. ment absolute ordered for plaintiffis on the stipulation, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, HAIGHT, and VANN, JJ., concur. BARTLETT, J., absent. WERNER, J., not sitting.

VOSS v. SMITH et al. (Court of Appeals of New York. Nov, 28, 1905.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (95 N. Y. Supp. 1164), entered November 14, 1905, which affirmed an order of Special Term directing the defendant to pay to the plaintiff the amount of certain judgments heretofore recovered by him. The motion was made upon the ground that the order appealed from was not a final order in a special proceeding and not appealable to the Court of Appeals. Charles F. Hoffman and Henry A. Friedman, for the motion. George C. Norton and George E. Pierce, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

UNION NAT. BANK OF LEWISBURG, PA., Respondent, v. LEARY, Appellant. (Court of Appeals of New York. Dec. 12, 1905.) Appeal from a judgment of the Appellate Division of the Supreme Court of the First Judicial Department (95 App. Div. 381, 88 N. Y. Supp. 652), entered June 21, 1904, affirming a judg. ment in favor of plaintiff entered upon a verdict directed by the court. Alfred A. Cook and Leopold Wallach, for appellant. Clifford W. Hartridge, for respondent.

PER CURIAM. Judgment affirmed, with costs.

GRAY, O'BRIEN, BARTLETT, HAIGHT, and WERNER, JJ., concur. CULLEN, C. J., and VANN, J., dissent.

VROOM, Respondent, V. SAGE, Appellant. (Court of Appeals of New York. Feb. 27, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (100 App. Div, 285, 91 N. Y. Supp. 456), entered January 16, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. George W. Wickersham, Sidney Smith, and Charles A. Gardiner, for appellant. Henry D. Hotchkiss, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, BARTLETT, WERNER, HISCOCK, and CHASE, JJ., concur.

UTICA & M. V. RY. CO., Appellant, V. SPOHN et al., Respondents. (Court of Appeals of New York. March 13, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (105 App. Div. 627, 94 N. Y. Supp. 1165), entered June 26, 1905, which affirmed an order of Special Term confirming the report of commissioners of appraisal in condemnation proceedings. William Kernan and Charles D. Thomas, for appellant. P. C. J. De Angelis and William J. Gardinier, for respondents.

PER CURIAM. Order affirmed, with costs.

CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, WERNER, and BARTLETT, JJ., concur. HISCOCK, J., not sitting.

WADDELL, Appellant, V. NEW YORK CENT. & H. R. R. CO., Respondent. (Court of Appeals of New York. Feb. 13, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (98 App. Div. 343, 90 N. Y. Supp. 239). entered November 28, 1904, which reversed an order made at a Trial Term denying a motion for a new trial after a verdict in favor of plaintiff and granted a new trial. George H. Harris, for appellant. Daniel M. Beach, for respondent.

PER CURIAM. Order of Appellate Division reversed, and judgment of Trial Term affirmed, with costs in both courts, on the ground that under the circumstances the contributory negligence of the plaintiff was a question of fact for the jury.

CULLEN, O. J., and O'BRIEN, BARTLETT, WERNER, and CHASE, JJ., concur. GRAY and HISCOCK, JJ., not sitting.

WAGNER, Appellant, v. NEW YORK, C. & ST. L. R. CO., Respondent. (Court of Appeals of New York. Nov. 21, 1905.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (100 App. Div. 512, 91 N. Y. Supp. 1117), entered January 19, 1905, affirming a judgment in favor of defendant entered upon à verdict directed by the court. George E. Towne and w. S. Thrasher, for appellant. Louis L. Babcock, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, HAIGHT, and WERNER, JJ., concur. O'BRIEN, J., absent.

BARTLETT, J. (dissenting). This action has been three times tried. The first trial resulted in a verdict and judgment in favor of the plaintiff, followed by a reversal in the Appellate Division. At the second trial the result was the same. At the third trial the record of the second trial was deemed to have been read to the jury, and thereupon the trial judge directed a verdict for the defendant, and a judgment was entered dismissing the complaint on the merits. The opinion of the Appellate Division reversing the first judgment is reported in 76 App. Div. 552, 78 N. Y. Supp. 696. The opinion reversing the second judgment is reported in 93 App. Div. 14, 86 N. Y. Supp. 921. No opinion was written by the Appellate Divi. sion in affirming the judgment from which this appeal is taken. As this appeal is from a directed verdict against the plaintiff, she is entitled to the application of the rule that "in determining the correctness of the decision, the party nonsuited, or against whom a verdict is directed, is entitled to the most favorable inferences deducible from the evidence, and all contested facts are to be treated as established in his favor." Higgins y. Eagleton. 155 N. Y. 466, 50 N. E. 287; Ladd v. Ætna Ins. Co., 147' N. Y. 478, 42 N. E. 197; Weil v. D. D.. E. B. & B. R.'R. Co., 119 N.'Y. 152, 23 N. E. 487; Rehberg v. Mayor, etc., of N. Y., 91 N. Y. 137, 13 Am. Rep. 657; Waldron v. Fargo, 170 N. Y. 130, 133, 62 N. E. 1077. This action was brought to recover damages on account of the alleged negligence of the defende ant resulting in the death of plaintiff's intestate. The defendant company is familiarly known as the “Nickel Plate," and operates a railroad extending from the city of Buffalo westerly through the counties of Erie and Chautauqua in this state, and thence further west. The accident resulting in the death of the plaintiff's intestate occurred on the 16th day of April, 1901, at a point near Idlewood, in the county of Erie. The intestate, Nicholas Wagner, was a bridge carpenter, and worked much of his time with gangs of workmen er gaged in part in the repair of old bridges and the erection of new ones. He had been in the employ of the defendant some 10 or 12 years. Immediately prior to the accident the defendant had caused to be erected and completed a new bridge spanning a ravine 70 feet deep, more or less. The gang of workmen, of which the intestate was one, was engaged on the day in question in clearing up refuse material under and about the newly con.

structed bridge, consisting of timber, iron. stone, and other bulky articles. This work was accomplished by placing a derrick car, on which the intestate worked the day in question, and a gondola car on the bridge. The derrick raised the material and swung it over the gondola car upon which it was unloaded. This work had proceeded during the forenoon of the day in question, and many loads of material had been elevated and deposited in the gondola car without interruption or mishap. During the after. noon and as the work was nearing completion, there remained to be elevated four large cap stones which had been a part of the old bridge abutments. Three were raised without special incident, but while raising the fourth one, which was lying about 70 feet below the derrick car, the accident happened. This stone, owing to its great weight, 5000 pounds, caused the derrick car to tip over and fall into the ravine below, carrying with it the gondola car. The intestate was killed. One other man was fatally injured. The engineer on the derrick car, a laborer on the gondola car and others were more or less severely injured. This brief outline of the accident will render more easily understood the questions of law and fact involved.

The questions of law are: (1) Did the defendant furnish the plaintiff's intestate a safe place in which to work? (2) Was Isaac Cole, the superintendent of bridges, under whom as such official this work was conducted and superintended, the alter ego of the defendant? (3) Was the defendant negligent? (4) Was the intestate free from contributory negligence? (5) Did intestate assume the risk of the car tipping over? The Appellate Division on the first appeal held that the omission of the defendant's superintendent to anchor the derrick car to the track was the negligence of a fellow servant and such act was a mere detail of the work; also that the law of safe place was not involved. The Appellate Division on the second appeal held that liability on the part of the defendant could not be predicated upon the fact that a turnbuckle and chain were not in the derrick car on the occasion of the accident, as proper ropes for the purpose were there; also that the intestate was guilty of contributory negligence, and that he assumed the risk of the accident. A more detailed statement of the facts is necessary at this point. The body of the derrick car was similar to the ordinary flat car, on one end of which was erected the derrick and on the other a shanty, so called, that was built over the machinery, which consisted of an engine and boiler and a wheel similar to a ship's wheel used for steering, a device to control the boom of the derrick. This shanty was about 20 feet long and 7 feet in height. It was erected just back of the mast of the derrick. The shanty had two doors and a window in each end and at the side. In this shanty worked the engineer and the intestate, called the craneman, whose duty it was to operate the wheel controlling the boom of the der rick. The record contains pages of description as to the manner in which this derrick car and its machinery were constructed and operated. But a few more facts will suffice to a clear understanding of the situation. The mast of the derrick was 12 feet in height. To the bottom of this mast was attached a boom about 24 feet long, running up at an angle of about 45 degrees to a point that would bring the outer end of the boom opposite the top of the mast. From that point to the upper end of the boom was a horizontal beam securely fastened at both ends. The mast, the boom, and the beam were firmly fastened together as one common structure, and the only way of operating the boom was to revolve the mast when the engine was running. There are but two witnesses able to relate what occurred in the derrick car during the last two or three

minutes prior to the accident. One is a witness foreman thought it wasn't suitable. I have for the plaintiff named Cameron, who worked already stated that the design and use of this on the gondola car, and Eddy, the engineer of rope was a running line or lifting rope. It the derrick car. Cameron testified that while must have been between 200 and 300 feet long. this fourth stone was being elevated he could It was

pared and worn out. It was see the intestate through the window of the about an inch and something, but had been shanty, and that he was at his post of duty worked down so that it was about an inch line. with his hands on the wheel until the car be It was a manilla line. It was badly chafed gan to tip. Eddy, the engineer, who was sworn and worn." Superintendent Cole, when on the by the defendant and was then in its employ, stand, testified under cross-examination in rereferring to the raising of the fourth stone gard to the alleged tag lines as follows: which caused the accident, testified as fol. do not think those balf-inch ropes" (the tag lows: "We lowered away our rope and fastened lines) "would be suitable to anchor down that it to the stone below. While they were doing car with; neither of them.” Ope of plaintiff's that I stepped to the door and looked out. witnesses swore, as already stated, that a chain I stepped back and asked Wagner (the intes was always used in anchoring the car, and tate) if it wasn't a good plan to anchor the Cole, the superintendent, admitted under crosscar. He stepped to the door and looked out. examination that the rope had only been used and then he stepped back and looked over back | since the accident for the purpose of anchoring. of the engine. He said, 'I don't see any chain.' The rule in plaintiff's favor establishes the I said, "The only chain we have got is below facts as above stated. It is also a conceded with the stone hooks.' And at that we heard fact that the usual mode of operating this derthem holler to go ahead, and with that I started rick was to allow the boom to stand parallel the engine.” On cross-examination this witness with the track, and that such was its position testified: “Wagner (the intestate] looked for during the prosecution of the work the entire the chain just before we started the engine. morning of the day of the accident. It appears When I said something about it, then he looked by one of plaintiff's witnesses that up to the around for the chain; but we hadn't commenced time the large fourth stone was lifted the to lift the stone then. I said something to him, heaviest load placed upon the derrick did not and he looked around for the chain. There exceed 1800 pounds. Cole, the superintendent, wasn't any there." This witness further testi places the maximum weight prior to lifting the fied, in substance, that while the stone was heavy stone at 2600 pounds. This conflict in being raised the engine commenced to "stall," the evidence under the rule fixes the maximum and that he did not discover that the car was weight at 1800 pounds. Two witnesses at least tipping over, but turned to look at his steam swore that the fourth stone, which caused the gauge and found that there were 65 pounds. accident, weighed 5,000 pounds, and that it He remembered that distinctly. He then states: caused the boom to swing out from 6 to 15 “That wasn't more than half a minute, a few feet beyond the side of the car and resulted in seconds, before I lost consciousness. The obser- tipping it over. Cameron, testifying on behalf vation which I made of my steam gauge is of the plaintiff, swears that he never knew, about the last thing I can remember." It is prior to that day, of this derrick lifting a apparent that this colloquy between the intes weight exceeding 1800 pounds at any one time. tate and the engineer could not have been more This, of course, stands as a fact in the case. than a minute or two before the accident, and It is also a conceded fact that this derrick car there was no time to anchor the car and no was constructed about six months before the appliances were present. While there is a con: accident, and the use of it had not been conflict of evidence as to whether those appliances tinuous during the interval. There is evidence were present or not, the plaintiff, under the on behalf of the plaintiff that would place rule of a directed verdict against her, is entitled the total use at a very few days. It is clear, to have the facts settled in her favor that no under the rule in plaintiff's favor. that this appliances were in the shanty.

accident was caused by an attempt to raise It is proper at this point to consider the con a weight more than double any single load elevatdition of the record under the rule in question ed by the derrick prior to that time. There is as to the presence of these appliances in the also an additional fact which under the rule shanty at any time during the day of the ac can be considered a factor in producing this cident. It was clearly proved by plaintiff that accident. It appears that when the third stone the chain used by the workmen 70 feet below was raised it revolved and twisted the tackle the derrick car in raising the stone causing so as to impede somewhat the hoisting apparathe accident was the chain always used in tus. When the fourth stone was attached to anchoring the car. It appeared that there was the hook of the derrick a tag line was fastened a large hook on each side of the car. To this to the stone and held by Cole, the superinwas attached one end of a turnbuckle, and to

ckle, and to tendent, standing on an embankment some 25 the other end thereof was secured the chain, or 30 feet above the bottom of the ravine. Two and the latter was fastened to a girder of the witnesses at least testified that pulling on this bridge, or some other object of sufficient sta line, with the object of keeping the stone from bility to hold the car. There is a conflict of revolving, had a tendency to increase the weight evidence as to whether there was not hanging on the boom to some extent. In other words, in the shanty that day some 200 feet of an the effect was to increase the strain upon the old 11/2-inch hoisting rope that had been badly | boom caused by the great weight of the stone. chafed and pronounced unsafe for use on the This fact must be assumed in plaintiff's favor. derrick; also some tag lines that were smaller The defendant states in point 4 of its brief and not used for anchoring the car. There is, in this court, in arguing the contributory neglihowever, a witness who swears that there were gence of the intestate, that he could have preneither turnbuckle, chain, nor ropes in the vented the boom from swinging out when the shanty on the day in question. Cameron, the stone weighing 5,000 pounds was being hoisted, foreman, also testified as follows: "There was as nothing broke or gave way that the boom not any appliance for fastening the car down gradually swung out as the stone was being there on that day, and when I speak of applian. raised, until finally the engine "stalled" and ces I mean chain and turnbuckles. There was the car tipped over. I have already pointed neither chain nor turnbuckles. There was an out that Cameron, the foreman working on the old running line in the shanty-a boisting gondola car, testified that the intestate was line; we called them 'runners'—which was | at his wheel when the last stone was being chafed and badly worn. Its previous use had lifted. He said: “I saw Wagner start for the been for hoisting; that is, a line that had been door of the car as she tipped." The inference in use on the same car or on this derrick, but from this testimony is that the intestate renot on this job. It had been taken out. Our mained at his post of duty until the moment

the car began to tip, when he evidently sought, between Buffalo, N. Y., and Bellevue, Ohio. safety in fight. A witness for plaintiff named Under me I have four or five gang foremen Trinder, who gave his business as hoisting engi with all their gangs. They report to me and I neer of the Kings Bridge Company, which in turn report to the chief engineer of the dibuilt or assisted in building the completed bridge vision. I was at Idlewood on this day that Mr. on which the derrick car was working on the Wagner was killed. I am familiar with this day in question, witnessed the accident and derrick car. I had it built under my instructestified as follows in regard to lifting the tions. It was built about six months prior to fourth and heavy stone: "As to what I observed the accident, the accident occurring on the 16th of in regard to the hitching onto and lifting of April, 1901.” After having testified at length in this stone, when I got there the engine had regard to the construction of the derrick car and just started working, the boom stood facing the details of the accident, he said: “We did Buffalo, as we called it, the east there; you not have the car anchored because I thought have been calling it Buffalo here; facing down it was unnecessary. In my judgment I did not the track. As the engine started to move regard it necessary to anchor the car. Had I the stone started to rise, but from where I was deemed it necessary I could have anchored the I couldn't see the stone yet. It came up to car. There were appliances there to anchor it where I could see the top of the stone; and I at that particular time. * * * I knew that noticed it kind of stop, and the engine looked the car wasn't anchored, and whatever necessity from where I was, the exhaust, it looked as there was for anchoring it I fully understood." though it was dying again, the exhaust, steam He also testified that he was in the shanty of from the engine." Witness had previously testi the derrick car all the forenoon, and that later fied that the engine "stalled" and stopped in he went down to supervise the fastening of the raising the third stone. "It went kind of sboo,' hoisting books to the heavy stones; that he as if it was choking off, and the stone stopped. used in that work the chain that was employed I could just see it from where I was. As the for anchoring the car. Cameron, the foreman, stone came down their car tipped over a foot to testified for plaintiff in this connection that he 18 inches off the track, and as the stone raised was foreman of the carpenter gang engaged in up again the car settled back, and the boom this work, and that the intestate was a memhad been swung out in the meantime; and Mr. ber of his gang. He further testified that the Cole stood off about from 50 to 75 feet from intestate had worked under him for nearly this track with the tag line in his hand, holding eight years. We thus have the undisputed evithis stone, naturally pulling it to him to steady dence that this gang of workmen were in charge

* * The boom was standing towards | of a foreman, and over him was the supervisor Buffalo, and as it got about here, at an angle of bridges, who had under him four or fire foreof about 45 degrees, it had sprung down and men with all their gangs, this being one of them. tilted the car, and kept working out, going by Under these circumstances to hold that Cole jerks. It kept working out by jerks. * * * was a fellow servant of the intestate is to ignore Cole hollered two or three times for Nick to all the evidence in the case bearing on the point. pull in the boom. He didn't pull in the boom. The presence of Cole on this work is to be ac. It kept going out. It got around pretty near at counted for on no other theory than that he right angles with the tracks and the car went was there in full control, and the inference is over. As the stone swung down the second or that this was the regular work in which he was third time, it took the car right over with it. engaged with his five separate gangs. As above The engine stayed stopped. * * * It was pointed out, he spent the morning in the shanty not possible, with this derrick and appliance

of the derrick car. He had no other duty to as I have described it, with the engine stopped, perform there except to superintend the work for Wagner to swing in this boom when told from that point, and had every opportunity to to by Mr. Cole." This is the testimony of a anchor the car if he deemed it necessary. This disinterested witness, and under the rule the gang of workmen had their own foreman (Camplaintiff is entitled to the most favorable infer eron), and it is undoubtedly true that if it ences to be drawn from it. It is clear that this had been Cameron's duty to anchor the car, and weight, more than twice as heavy as the der- | he had failed to do so, although in possession rick was ever subjected to, caused the engine of appliances for the purpose, it would be the to stop shortly after the hoisting began. The negligence of a fellow servant and a detail of vivid description of this trained engineer shows the work which would not charge the master. precisely what happened. The great weight prov Vincent v. Alden, 75 App. Div. 615, 77 N. Y. ed too much for the power of this engine, which Supp. 1142, affirmed without opinion 177 N. Y. was described by one of the witnesses as a four 545, 69 N. E. 1132; Vogel v. American Bridge horse power. The steam ran down and the Co., 180 N. Y. 373, 73 N. E. 1. We, however, engine stopped. The intestate was then power have here no such situation. Cole frankly adless to operate the boom; and it is a fair infer mits that he knew the car was not anchored ence that he could not have done so with the and had not been anchored because he deemed great weight of the stone if the engine had it unnecessary. His act in this connection was been working. What then happened was that the act of the master, and, if he failed in exthe stone began to descend by "jerks," as the ercising good judgment under the circumstances, witness put it.

it was the failure of the master to properly proIt remains to consider whether Isaac Cole, 1 tect the men employed. There is evidence in the superintendent of defendant on the work | the record which would seem to justify the conin question, was its alter ego. If he was, it clusion reached by the superintendent that will render unnecessary the consideration of during the forenoon there was no necessity for some questions that would otherwise be ma anchoring the car; that the work had gone on terial. Mr. Cole was sworn by the defendant, smoothly, and loads weighing nearly a ton were and testified in an honorable and straightforward raised without disturbing the equilibrium of the manner, apparently without being swayed by derrick car. Be that as it may, the plaintiff is the fact that he was still in the employ of the entitled to insist, first, that the necessity for defendant and that his testimony might have a anchoring the car was to be determined by the serious effect on this case. He swore that he superintendent in charge, and if the superinwas the supervisor of bridges and buildings on tendent had so ordered it would have been the the Eastern Division of the defendant, and that duty of intestate to obey if appliances were at his division included about 245 miles from Buf hand; second, that under the rule of directed falo to Bellevue. He further testified: “I have verdict she is entitled to have it stand as a fact been on with the 'Nickle Plate since the spring in this case that no appliances were furnisbed of 1884. * * * I have been supervisor for intestate that day, even had it been his duty to the Nickle Plate people about 16 years. * * * anchor the car; also, that it was no part of his In the performance of my duties I go anywhere | duty to see that it was anchored. It is not

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