#### John Margies, Respondent, *v.*Clyde Steamship Company, Appellant.

First Department,

May 1, 1914.

Master and servant—negligence — injury Tby fall of bale of hay— evidence insufficient to establish negligence of defendant — fellow-servant.

In an action to recover for personal injuries alleged to have been sustained through the negligence of the defendant it appeared that while the plaintiff was engaged in rolling hay onto a canal boat a bale from a tier about seven feet high fell upon his foot. On all the evidence,

*Held,*that the plaintiff failed to establish the negligence of the defendant, and that it was error to refuse to submit to the jury the question as to whether the accident was the result solely of the negligence of a fellow-servant.

Appeal by the defendant, Clyde Steamship Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of November, 1913, affirming a judgment and order of the City Court of the City of New York, and also (as stated in the notice of. appeal) an appeal from the judgment and order of the City Court which were so affirmed, and from the judgmeiit and order of the City Court making the determination of the Appellate Term the judgment of that court.

*James A. Hatch,*for the appellant.

*James F. O'Neill,*for the respondent.

*141Dowling, J.:

Plaintiff has recovered a judgment in the sum of $2,000 for damages sustained through alleged negligence on the part of the defendant. By their verdict the jury accepted the plaintiff’s version of the occurrence through which he was injured, which was, that on February 3,1912, while in the employ of the defendant at Pier 36, North river, in the city of New York, he was engaged in rolling hay on the canal boat *Albert C. Hall,*the hay being piled thereon in tiers to the height of about seven feet. Plaintiff went to work on the boat at six o’clock in the morning and the accident occurred about nine o’clock, at which time the bales were at the maximum height of about seven feet at both ends of the boat, while the middle thereof was empty. Workmen were engaged on the top of the tiers throwing down the bales to the deck level, when the plaintiff’s duty was to roll those bales towards a point where other workmen were transferring the bales from the foot of skids extending from the canal boat to the pier, whence they rolled them over to the steamship *Comanche,*upon which they Were, being delivered. Two men placed the bales on the trucks, one standing on either side of the skid, and it was to these two men that plaintiff was rolling the bales. The bale which fell upon him from the upper tier fell upon his foot, as he testified, and caused the injuries in question.

Assuming that the accident occurred in the manner described by the plaintiff and his witnesses, and not as described by the defendant’s witnesses, we are of the opinion that the plaintiff has failed to establish any act of negligence upon the part of the defendant and that whatever negligence is chargeable was that of a fellow-servant of the plaintiff. The plaintiff charged six specific negligent acts upon the part of defendant, no one of which was established by proof upon the trial, nor are we able to discover from the record what the particular act of negligence was which the jury found the defendant had been guilty of. ’ The trial court charged: *“*If after you have considered the evidence you believe the version of this accident as told you by the plaintiff and his witnesses, that his injuries were caused by the careless and negligent act of the defendant in unloading this hay, and in the manner that he has described, *142then your verdict will be in his favor. ” This charge could have meant no more than that if the jury believed the story of the plaintiff and his witnesses as to how the accident occurred, the plaintiff was entitled to recover, and submitted no question for the consideration of the jury as to what the act of negligence was which caused the happening, nor what act of omission or commission upon the part of the defendant made it liable to the plaintiff.

The record discloses no proof sustaining any claim of negligence, and error was committed in refusing to submit to the jury the question of whether the accident was the result solely of the negligence of a fellow-servant. It follows, therefore, that the determination of the Appellate Term and the judgment of the City Court must be reversed, and while upon this record there is no proof of the defendant’s negligence, as it may be possible for the plaintiff to furnish additional evidence, a new trial is directed, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Determination and judgment reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.