In the spring of 1906 the defendant was erecting a structural steel.frame building on Genesee street in the city of Utica, and the plaintiff, an experienced structural steel worker, was in its employ. The frame was up tp the third story, and the third floor was covered with two-inch plank, except a strip about eight feet in width extend*91ing along the entire south side of the building. The plaintiff was working on this floor, and had been at work five days: He was under a foreman named Eice, and there were seven or eight men at work on this floor when the plaintiff -was irijured. I-beams twenty-two feet in length had been hoisted by derricks and piled on the southeast corner of the third floor, to be used in the building construction. One end of these beams rested on a railroad tie. The.evidence does not show how long they had been on this floor, but for two days at least.
'In the forenoon of April twenty-first the men were raising and putting in place steel columns about thirty feet in length and ten inches square. These connecting columns were hoisted upright by a derrick, operated by a steam engine, under the direction of Eice, who was by his derrick forty to forty-five feet from where plaintiff was at work. At the top of each column there were iron plates called lugs, containing holes, and there were corresponding holes in the other columns. As a column was lowered, the men steadied it so it would go into the lugs, where it was made stationary by bolts. The impact of the column .with the lugs made quite a heavy jar.
On. this same morning a column was being raised, and the plaintiff, with a coemployee, was steadying it to be placed in the lugs. The plaintiff was standing near the end of one of the heavy I-beams resting on the railroad tie, with his feet separated in order to brace himself, and as the impact came the I-beam slipped from the tie, striking the plaintiff’s leg and fracturing it.
The notice required by the Employers’ Liability Act (Laws of 1902, chap. 600) was duly served, and the particular negligence imputed to the defendant is in so placing the I7beams “ that the same were liable and likely to tip or fall over at any time and seriously (injure any one who might be struck thereby.”
There is no material controversy over the facts. Eegis, a fellow-workman of plaintiff, testified in his behalf and described the location of the beam which fell on the plaintiff as follows: “ The I-beam next to where Olcott (the plaintiff) was working was just lying on the very end' of the tie. It was just lying about half off on one end. The tie was about six inches thick. It was flattened on the top and bottom. The end was sawed off square. The I-beam was lying on the end of the tie, just about half of it over *92the end of the tie. I put my hand oh it. It was pretty shaky. It moved at the-top. That was about ten o’clock in the morning. That was about three-quarters of an hour or an hour before Olcott was injured.” On cross-examination this witness further testified: “ I saw the I-beams lying there a couple of days before lie was hurt. ■ I worked around there. I was close to them so I could ’ see them. ■ I saw-how théy were piled. I didn’t notice on that day that one of these I-beams was only, half on the railroad tie. I didn’t notice that the first time. It was all right that clay. The first time I saw. the I-beams in the southeast corner they were piled all right so far as I know.” - There is no evidence in the record which tends to contradict the testimony of Regis.
So. far as appears, therefore, the I-beam- was originally properly placed on the railroad tie, and was in a safe condition two days before the ■ accident. The 'first time- it was observed to have been out of place was about three-quarters of an hour before- the plaintiff was injured. There is no suggestion that the foreman knew of its insecure position on the tie, and there is no circumstance appearing indicating that he should have expected'it was out of place. This was a building in process of erection, and the contractor could not ■be .expected to have every piece of material used in its erection lying with absolute regularity.
Again, the plaintiff was a man of long .experience in this work,- and the location of the tie was as observable to him as to any one, for he was in its immediate vicinity, and the foreman some distance away from him. We think the plaintiff failed to make out a case.
The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide event.
All concurred.
Judgment and order reversed, and new trial ordered, with costs to appellant to abide event.