The plaintiff’s intestate, an employee of the defendant, was killed while engaged with other servants of the defendant in the ■construction of an iron tank. The plaintiff sues to recover damages, ■alleging that the death was caused by the negligence of the defendant. The allegations of the complaint respecting the imputed negligence are that the intestate was working under the direction of the defendant and its foreman on the to]i of the iron tank, “ and while so working and engaged in assisting to hoist, by means of a derl'ick erected on the top of the said tank, an iron plate of great size and weight, to wit: of the weight of between ten hundred and twelve hundred pounds, the said derrick broke and the arm of the same struck ,-said Joseph L. Clark, and he was thereby thrown violently from the top of the said tank to the ground, some forty feet away from ■said tank, and thereby sustained a fracture of the skull, from which he soon thereafter and on the said 8th day of January, 1898, died.” It is further alleged that said death was “ caused solely by the recklessness, carelessness and willful negligence of the defendant, its agents and servants, in failing to * * * provide proper appliances and machinery and a sufficient number of men to safely operate said ■derrick and hoist said iron plate.” The attribution of negligence, therefore, is in the construction of' the derrick, the failure to provide proper appliances and machinery to hoist the iron plate, and a .sufficient number of men to operate the derrick in safety. The •complaint was dismissed at the close of the plaintiff’s proof, and the appeal is from the judgment entered upon such dismissal.
The evidence introduced in support of the action was insufficient to establish negligence as charged in the complaint, or any other species of negligence which would render the defendant liable. There is no evidence whatever of any defect in the scaffold, or of the want of a sufficient number of men to operate the derrick and hoist the iron plate safely, or of the want of proper construction of *600the derrick itself, or of the want of provision of proper appliances- and machinery to operate the derrick.
The facts proven are that this defendant was constructing a large-tank of cylindrical shape and made of bent iron plates or sheets, those plates being put in place in upright courses, one above the other. At the time of the accident, the tank was built up to a. height of about sixty feet. In the interior was a scaffold, upon which men worked and on which stood a derrick used in hoisting the plates. That was the derrick, the arm or boom of which broke and a part of which struck the plaintiff’s intestate. The method o£ raising the plates from the ground was that they were first attached, to a large derrick operated by steam and standing in a house; when they were thus lifted to the highest point that could be reached,, they were transferred to tackle connected with the derrick on the-scaffold in the tank and were then raised to be put in place on the-tank by men operating the smaller derrick on such scaffold. The process of making the transfer from the large derrick to the tank derrick was, that the foreman in charge of the work on the tank would go outside, descend on the tackle, disconnect the iron plates-from the large derrick, connect them with the small derrick, and then,, he giving a signal, the men inside the tank would work the ropes to-draw up the plate to be put in place. The foreman, returning to the-top of the tank, would keep the plates from striking the side of the-tank by pushing them out, as they swung in, with his feet.
The death of the plaintiff’s intestate was caused by the breaking of the tank derrick under the following circumstances, viz.: A plate of iron transferred to the tank derrick was being raised to be put in place; it swung in towards the tank; the foreman did not ward it-off and it struck the side of the tank and became caught or wedged under rivet or bolt heads protruding from the side of the tank, or the angle iron at the top of a course of plates in place, and while-thus caught and immovably fixed'by the workmen inside still pulling upon the ropes, the excessive strain bearing upon the derrick' boom caused it to break and a piece of it in falling struck the plaintiff’s intestate and hurled him from the scaffold.
The plaintiff claims in the first place that the defendant is liable-because of a violation of the provisions of section 18 of the Labor-Law (Chap. 415, Laws of 1897) and under the interpretation given. *601to that section by this court in Stewart v. Ferguson (34 App. Div. 515). That section of the statute has no application to this case. There is no proof of the employer providing an insufficient scaffolding, hoists, stays, ladders or other mechanical contrivances in and about the work of raising this plate, nor any thing which was not66 so constructed, placed and operated as to give proper protection to the life and limb of a person ” employed or engaged on that work. All that is claimed in this action as bringing the case within the operation of this statute is that guy ropes were not attached to the bottom of the plate as it was being hoisted, so that it might be controlled from below and thus the swinging in be prevented. But there were 1,000 feet of rope on the premises and at the work. It was furnished by the defendant and could have been used as guy ropes if the men had chosen to use it. Provision was thus made, even if it were shown that their use was proper or necessary.
It is further urged that, irrespective of this statute, the liability of the defendant is made out because the plaintiff’s intestate was working in a place that might become dangerous, and some provision should have been made in anticipation of the occurrence that actually happened. But here, again, it is quite clear that all that was necessary to avoid the accident was the use of guy ropes, and they were provided.
The negligence shown in the case, if any, is that of a fellow-servant of the plaintiff’s intestate, either in omitting to use the rope provided or to give a signal to the men operating the derrick to desist from pulling, when the plate became caught, and thus relieve the strain, or in having the arm of the tank derrick raised so high that the position of the plate was such that it was forced in under the holt or rivet heads or angle iron, and was immovably fixed there in consequence of the continued pulling upon the ropes.
The plaintiff urges that he was prevented from giving proof of the insufficiency of the derrick to sustain the weight of the plate. But the evidence offered on this subject was objectionable, because the hypothetical question in each case involved a material fact which had not, at the time the question was asked, been established by the evidence. The imputed negligence of the defendant was only in not using guy ropes, and that view of the case was acquiesced in by the plaintiff’s counsel on the trial, who admitted that, but for the *602undue strain put upon the derrick, it would probably have been sufficient to accomplish the purpose for which it was erected. No other exception requires consideration.
The judgment must be affirmed, with costs.
Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.
Judgment affirmed, with costs.