This case on a former appeal is reported in 122 Appellate Division, 188. There is on this appeal no material change in the facts. Plaintiff was injured by reason of a large box of freight falling upon him. This box was being unloaded from the defendant’s steamboat in Troy. At the direction of one Vanderyolgen, defendant’s Superintendent, it was placed iii the gangway leading from the boat and leaned up against the side of the gangway, it fell with-*808put injury to any one. Thereafter under the direction of one Vanderheyden the box was again placed in position against the side of the gangway. It again fell, this time injuring plaintiff.
The learned trial justice permitted the jury to base their verdict either on the negligence of Vandervolgen, tlie superintendent, in suffering .the box to be placed in the gangway in its original position before its first fall or on the negligence of Vanderheyden in causing it to be placed in position the second time on the theory that Vanderheyden was superintendent in the absence of Vandervolgen and that the latter perhaps was absent when the box was placed in position the second time. .
It is clear that if the box was originally negligently placed in position such negligence was not the proximate cause of the injury because the box fell without injuring plaintiff. It was the second adjustment of the box which caused the injury. Placing the box in the gangway was not negligence, but the manner in which it was ,/ there placed. Ho one can say that it was placed at the- same angle on the two occasions or that it was similarly placed in other respects, or.that the same conditions attended its fall on the two occasions, or that the same causes produced the two falls. As pointed out by this court on the former appeal the box may have fallen because of the swaying of the boat at the dock which conveyed some motion to the box standing in the gangway or it may have been overturned by a gust of wind. There may have been other reasons for its falling not identical on the two occasions. But whatever may have been the immediate cause of the box falling on the two occasions it is very clear that Vandervolgen caused no injury by permitting the. box to be placed in the gangway' before its first fall, and as the verdict may be based on such alleged negligence it cannot stand.
. The judgment and .order must be reversed and a new trial granted, with costs to the appellant to abide the event. .
.' All concurred, except Chester, J., dissenting in opinion, in which Kellogg, J., concurred,