#### Bernhart Carisen, Appellant, *v.*Harry D. McKee and William W. Beers, Doing Business as the Eastern Construction Company, Respondents.

Second Department,

December 30, 1908.

Master and servant — injury while lifting beam—proximate cause — act of superintendence.

Where a workman, having procured a crowbar to turn over an iron beam, was directed by his foreman to discard the bar and raise the beam by hand with the aid of fellow-servants, and having actually raised the beam, was injured when his fellow-servants let go their hold, the direction to discard the bar was not the proximate cause of the injury, hut rather the act of the fellow-servants for which the master was not liable.

Appeal by the plaintiff, Bernhart Carlsen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of January, 1908, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial made upon the minutes.

*Charles*Caldwell, for the appellant.

*William L. O'Brion [Frank Verner Johnson*with him on the brief], for the respondents.

Rich, J.:

The plaintiff — a servant of the defendants — brought this action under the provisions of the Employers’ Liability Act to recover *653damages for a personal injury which he claimed to have sustained through the negligence of the superintendent of the defendants. The complaint alleges the service of a notice in which the statement of negligence is limited to the following clause: *“*The accident was due to the negligence of your Superintendent named Smith, nicknamed ‘ Bull Head ’ Smith.” The plaintiff was the only witness sworn upon the trial. He testified that he and other workmen were directed to turn over an iron beam weighing about 800 pounds for the purpose of ascertaining its number. He procured a crowbar and started towards the beam, when the superintendent told him to get hold of it with his hands. The workmen then took hold of the beam, the plaintiff being at one end, and had raised it ten inches, when the other workmen let go of it, permitting it to fall back, and the plaintiff, who retained his hold, had his hand caught between it and another beam, causing the injury complained of. Plaintiff testified that the purpose he had in getting the bar, and the sole use he intended putting it to, was to pry, or, as he says, “ pinch up ” the beam so the other men could get hold of it to lift. The learned trial court, at the close of plaintiff’s case, dismissed the complaint upon the ground that the direction of Smith to plaintiff not to use the bar, but to take hold of the beam with his hands, and his compliance with such direction, if negligence, was not the proximate cause of the injury and did not render the defendant master liable. This ruling was correct. The proximate cause of the accident was the letting go of the beam by the other workmen, a cause for which the master was not liable. Had the superintendent permitted plaintiff to use the bar, as he intended, to raise up the beam so the workmen could get hold of.it, this object would have been accomplished the moment the men had secured their hold. This they did without the use of the bar, and had actually raised the beam ten inches when it fell. The failure to use the bar was not connected with the accident. Ho negligent act or direction of the superintendent is shown to have been the cause of the injury.

The judgment and order must be affirmed, with costs.

Present — Woodward, Jeuks, Gaynor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.