(dissenting.)
I am unable to concur in the opinion of Mr. Justice Hatch. The fall of the derrick was not due to any fault or neglect of the defendant. It is not claimed that the derrick was defective or out of repair, and there is no basis whatever for the assertion that it. was not properly constructed considering the work that was being done. The cause of the accident is clear. The mast of the derrick was sustained by guy ropes which were so arranged that they - Could be removed from time to time as the work progressed and occasion required. When they were removed it was made the duty of one of the intestate’s fellow-workmen to replace them before the boom of the derrick was again moved. A “ tag line ” was also attached to the boom, which line was held by another fellow-workman by the name of Hanson, whose duty it was not to permit the boom to be moved until the guy ropes had been put in place. Each of these fellow-workmen failed to perform the work assigned to him. Hanson let go of the '‘ tag line,” and by reason thereof the boom swung around and the other fellow-workman having neglected to put the guy ropes in position, the derrick collapsed.
How the defendant can be held liable, under such circumstances,, I am unable to conceive., The accident was directly due to the negligence of a coservant and nothing else.
Nor do I think that section 18 of the Labor Law (Laws of 1897, Chap. 415), upon the facts here presented, has any application whatever.
The exceptions of the plaintiff should be' overruled and judgment entered dismissing the complaint.
Judgment reversed, new trial ordered, costs to appellant to abide event.