#### Catherine McGovern, as Adm’x, etc., App’lt, *v.*The Central Vermont Railroad Company, Resp't.

*(Supreme Court, General Term, Third Department,*

*Filed July 6, 1889.)*

Negligence—Master and servant—Fellow workman—When master NOT LIABLE.

The plaintiff was employed by defendant to work in its grain elevator. In each one of the bins was a trap door opening inward and upward. This door was for a workman to enter and inspect the bin and clean it out after the grain had ceased to flow from the valves. The bin in question was some fifty feet deep. The intestate and one F. were fellow workmen, charged with the duty of cleaning out the bins. Both remarked on the day of the accident that the grain was heated—glued together in large quantities. Plaintiff’s intestate had been in the same employment in the elevator some thirteen years. After the grain had ceased flowing (the foreman in charge was present), said intestate was called and told that the bin needed cleaning. Meantime the foreman had placed a ladder up to the trap door, ascended opened the door and thrust upward into the bin *947a pole, but finding nothing, descended and handed the pole to said intestate’s fellow workman without remark. The latter ascended the ladder and made a like examination and finding nothing, descended and went and procured a lantern. As he came, plaintiff’s intestate arrived, and without any remark to him or by him, ascended the ladder, carrying a, shovel, and entered the bin. The fellow workman followed, the latter made an inspection and discovered that the grain adhered in large quantities upon the sides of the bin, and said to plaintiff’s intestate that it was dangerous, and that they must g.t out and operate from the top of the bin. Before plaintiff’s intestate could escape from the bin, the grain suddenly fell, closed the trap door, and smothered him. The elevator bins, method of construction and appliances, were substantially the same as they had been for seventeen years, nor did it appear that they had during that time brought injury to anyone, or that any better method of construction had been tested or approved by experience elsewhere. There was no evidence that the foreman knew that the grain was heated or glued together. There was a man stationed on the upper floor to make an inspection from that floor, when called upon by plaintiff’s intestate to do so, but no request was made: *Held,*that defendants are not chargeable with any negligence.

Appeal from a judgment entered upon a non-suife directed by the court at the close of the plaintiff’s testimony, upon the trial before a jury at the St. Lawrence county circuit.

The action was to recover the pecuniary loss sustained by the plaintiff by the death of Thomas McGovern, alleged to have been caused by the negligence of defendant.

McGovern was employed by the defendant to work in its grain elevator at Ogdensburg. The elevator has 144 grain bins, some double and some single. Bin Vo. 101 was a double bin fifty feet deep, with sides eleven by twelve feet. Its bottom was fourteen feet above the ground floor of the building, and was shaped so as to form two hoppers, each with four inclined sides converging towards a point at their extreme bottom, in which valves were placed for the automatic outflow of the grain when open. A trap door eleven by fifteen inches was in the bottom of the bin in one of the inclined sides of the hopper. This was a man-hole for a workman to enter and inspect the bin and clean it out after the grain had ceased to flow from the valves.

The trap door opened inward and upward. On the 23d day of July, 1886, McGovern, in the usual course of his employment, entered the bin through the trap door along with one Fackerell. Fackerell observed that a large amount of grain had compacted together upon one side of the bin, and said to McGovern that they must get out and operate from the top of the bin. Fackerell descended through the trap door and down a ladder. McGovern followed, but as he placed his feet through the trap door the corn fell, pushed him down the incline of the hopper bottom to the valve, closed the trap door, covered, smothered and killed him. Other facts are stated in the opinion.

*C. A.*Kellogg, for app’lt; *Louis Hasbrouck,*for resp’t.

*948Landon, J.

The single question presented by this appeal is whether the plaintiff’s intestate, Thomas McGovern, met his death because his employer, the defendant, failed to perform the duty which his duty as master enjoined upon him.

The elevator, bins, methods of construction, and appliances were, so far as it is material to examine them, substantially the same as they had been for seventeen years. It does not appear that they had during that time ever brought injury upon any one, or that any better methods of ■construction or appliances had been tested and approved by experience elsewhere. The only fault alleged with respect "to construction is that there was a trap door in the bottom of this bin opening upward, in such way, as was shown by the experience in this case, that if grain should glue together, upon the side of the bin and remain there in large quantities after the flowing grain had discharged, it was liable when dislodged, or of its own gravity to fall or slide ■down, and push the trap door over the opening and close it. It was so devised to prevent the grain from falling through this opening upon the floor below. All of the other bins, ' 144 of them, had similar trap doors. It does appear that such glued grain had fallen before, but no one had ever been hurt. The bin was fifty-five feet high. When the grain ceased to flow the bin was inspected either from the top or bottom to ascertain if all the grain had run out. A man was stationed upon the upper floor to make the inspection .from above. This he did when requested by the men in charge below, the-request being made through a speaking-tube. If the inspection was made from below, the bin was entered through the trap door in the bottom. Upon inspection the bin was cleaned out. Usually dry grain very fully discharged itself, and the workmen who entered the trap door and made the inspection, swept out the bin. If grain adhered to the sides or corners of the bin, and was within reach from the bottom, this workman would dislodge it with a pole or shovel and then sweep the bottom. If the grain was heated, and it was apprehended that it glued together in large quantities the inspection was usually made from the top, and proper appliances were operated from the top to dislodge the compacted grain.

It is obvious that the evidence would not justify a finding of defective or improper construction or appliances. *Stringham*v. *Hilton,*111 N. Y., 188; 19 N. Y. State Rep., 621, and cases there cited. Whatever danger there was arose from making the inspection from the bottom, instead of from the top. The intestate and one Fackerell were fellow-workmen, charged with the duty of placing cars on the tracks on the ground floor, beneath the bottoms of the bins, and of cleaning out the bins. They ,t°ok turns in cleaning the bins, and it was McGovern’s turn to clean this bin when the grain ceased flowing from it. Fackerell and McGovern remarked to each other, as the grain was flowing, that it Was heated.

McGovern had been in the same employment in this *949elevator for thirteen years. After several cars had been loaded from this bin the corn ceased flowing. Linton, the foreman in charge of the elevator, was present. McGovern was in some other part of the building, and as it was his bin to clean, a fellow-workman ran and called him, saying: “Your bin has gone to shovelling,” that being the expression in use in the elevator to indicate that the corn had ceased flowing and the bin needed cleaning. McGovern replied that that could not be so, as he had been into the bin the day before. He hastened to the bin. Meantime Linton, the foreman, had placed a ladder up to the trap-door, ascended the ladder, opened the door and thrust upwards into the bin a pole, but feeling nothing, descended and handed the pole to Fackerell without remark. Fackerell ascended the ladder and made a like examination, arid finding nothing, descended and went and procured a lantern. As Fackerell came down McGovern arrived, and, without any remark made to or by him, ascended the ladder, carrying a shovel, and entered the bin. Fackerell followed him with the lantern and with a pole eight feet long. Fackerell made inspection, and discovering that the corn adhered in a large mass upon one side of the bin, said to McGovern that it was dangerous; that they must get out and operate from the top of the bin.

Fackerell then descended the ladder, McGovern followed, and put his feet out of the trap-door, upon the ladder, when the corn, about 500 bushels, suddenly fell, and, pushing his body down the incline of the bottom of the bin, drew his legs back through the opening, closed the trap-door and smothered and killed him before he could be extricated.

If Linton may be said to have stood in the place of master, he did not give McGovern any special order to enter the bin. Linton, himself, had undertaken to make inspection, but silently surrendered that duty to Fackerell and McGovern, who were accustomed to it. They proceeded to inspect the bin, and, of course, to decide what to do as the result of the inspection. They did inspect, and did decide that there was danger, and began to retreat, when the danger overtook McGovern. It is urged that the master ought to have forbidden inspection from the bottom, and have permitted it only from the top, in the first instance. The view is suggested by this accident, not by any previous experience. There is no evidence that Linton knew the com was heated. McGovern did know it. He was both inspector and workman. He had had thirteen years experience in the business, and no inference of his incompetency, as inspector, is suggested by the evidence. The man on the upper floor only inspected from above, when called upon from below to do so, and it was.evidently McGovern’s place to make such a call with respect to this bin, if he thought it needful. He, perhaps, was a little hurried and confused by the fact that the bin “ had gone to shovelling,” in his temporary absence, and that Fackerell had taken up his work. .But Linton *950gave him no orders, and did not interfere with him. We think the testimony wholly fails to show that the defendant was at fault. *Bohn*v. *Havemeyer,*46 Hun, 557; *12*N. Y. State Rep., 589; S. C., 21 N. E. Rep., 402; *Gibson*v. *Erie R’y Co.,*63 N. Y., 449; *De Forest v. Jewett,*88 id., 264; *Shaw*v. *Sheldon,*103 id., 667, 3 N. Y. State Rep., 679.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.