(dissenting). — While it did appear in this case that the foreman of the yard, Nelson, hired and discharged men, and also that he directed the men what to do and where to do it, it was nowhere shown that he ever superintended the men in the piling of lumber. The record was entirely silent as to the proper method of piling, and as to who, if any one, gave directions in that matter; nor was there a particle of testimony tending to show that Nelson knew how the lumber which fell upon Zintek was piled, or that he had any means of knowing it superior to those possessed by Zintek himself. In point of fact, Zintek, of all men, had the very best means of knowing just how the pile which fell upon him was constructed, and what the danger was; for he alone took away the lumber, board by board, which supported the fatal pile. He was more than half a day engaged in removing this support, and could not help seeing that the neighboring pile was only a loose heap which might fall at any moment. The effort seems to have been made, to show that Marzillger, who was working in the alley-way, could not observe the danger because of the breast-high pile of boards which lay along the alley in front of the other piles; but his inability to see in no way lessened the certainty that, if he had been where Zintek was, he would have seen. Because of these facts I think the judgment of non-suit was right, even though the doctrine of superior and inferior servant has any application to such a case, which I very much doubt.
Hoyt, J., concurs.