I cannot see that there was any evidence of negligence of the defendant or its superintendent that would justify a recovery. The defendant was building a smokestack for the Port Morris power house of the Hew York Central Railroad Company. There was what was called a chute which ran one and one-half stories constructed of boards, through which the blocks were being hoisted to the smokestack where the bricklayers were at work. The plaintiff was engaged in loading blocks into a bucket which was hoisted up through the chute. While this bucket was being hoisted one of *11the blocks of which the chimney was being constructed fell, struck the ground and then rebounded and struck the plaintiff. There was no evidence as to what caused the block to fall, and whether it was due to improper loading, the negligence of one of the workmen in loading the bucket or from some other cause. There was evidence that blocks had fallen through this chute before, and there was evidence offered, which was excluded, to show that the foreman had been informed of that fact. The plaintiff stood some distance away from the bottom of the chute, and it was because of the block striking the rail on the ground and rebounding that he was injured. It certainly was not an unusual thing for a block to fall down a chute of this kind, but as the burden of proof was upon the plaintiff to show that the accident was caused by some act of negligence of the'defendant or its superintendents, in the absence of any proof as to what caused the block to fall, as between employer and employee, I do not see how it can be said that there was satisfactory evidence to justify a finding that either the employer or his superintendent was responsible. I do not consider that the question as to whether or not the defendant furnished the plaintiff a safe place to work is involved, as he was to place these blocks in the bucket, and there was no other place that he could work and no protection that I know of could have prevented the block from falling down the chute, as the chute had to be opened to admit of the passage of the bucket.
I think the judgment should be affirmed.
Judgment reversed, new trial ordered, costs to appellant to abide event.