Defendant appeals from a judgment in plaintiff’s favor for damages suffered by reason of the death of her intestate. The facts were very fully stated upon a former appeal (120 App. Div. 192).
The action was brought under the Employers’ Liability Act (Laws of 1902, chap. 600), and the question involved is whether or not the defendant’s foreman was guilty of negligence in causing the removal of an iron column which upheld the roof of a tunnel, while there still remained on one side of the column eight or ten feet of rock roof unsupported by timbering. It was this question *585which was submitted to the jury and resolved in plaintiff’s favor. This was not, however, the negligence alleged in the complaint, which after alleging that the death of plaintiff’s intestate was caused solely by the negligence of defendant, as said intestate’s master, proceeded to specify the negligent acts, as follows: (1) That said defendant failed to furnish him with a safe place to work, and (2) failed to reasonably safeguard, inspect and keep safe the place, appliances and apparatus used in connection with said contracting operations, and (3) failed to furnish deceased and said contracting operations with reasonably safe appliances, apparatus, cable, ropes, wires, buckets, ways, works and machinery with which to do said work, and (4) knowingly employed and retained incompetent foremen and workmen to guide, direct and assist plaintiff’s intestate in the performance of his work, and (5) failed to formulate, promulgate and enforce proper rules and regulations for the safety of deceased and said coemployees. The plaintiff here sets forth five separate and distinct specifications of negligence, not one of which was proven, as the trial justice very properly held and charged.
If there was any negligence, and not a mere error of judgment, it was that of defendant’s foreman in the manner in which he directed the prosecution of a detail of the work, and of such negligence there is no allegation in the complaint, and no one oE the specifications of negligence, quoted above, can be fairly construed so as to cover the facts disclosed by the proofs. It follows that the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.
Laughlin, Clarke and Houghton, JJ., concurred.