The box which fell upon plaintiff and injured him weighed about 800 pounds and was about ten, feet long, eight feet wide and a foot thick. It had been taken out from the steamer City of Troy *809at its dock in that city and had been placed standing upon its edge in the gangway, which was an inclined plane eleven feet wide and twenty feet long, and upon which was placed a plank platform leading from the dock to the steamer. It was first placed in the gangway under the direction of one Vandervolgen, the defendant’s dock superintendent. Afterwards it was found lying flat upon its side in the gangway. It was again placed upon its edge under the direction of one Vanderheyden, who was a freight handler, and who, according to the evidence, gave directions to the other freight handlers when Vandervolgen was absent. The action is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The former judgment was reversed because the learned trial justice allowed the plaintiff to recover for the negligence of Vanderheyden while the superintendent, Vandervolgen, was not absent from the work and without any proof to justify the finding that Vanderheyden was an employee whose sole or principal duty was that of superintendence. .Upon the new trial the evidence was read from the case ■ on the former appeal, and but little additional evidence was taken, so that the evidence upon this appeal is practically the same as upon the former appeal. Because of this fact the appellant urges that if we follow our former decision we must reverse this judgment. I do not think so, for the simple reason that on the new trial the plaintiff under the direction of the court has not been allowed to recover for the negligence of Vanderheyden while Vandervolgen was not absent. On the trial now under review the' question was submitted to the jury whether Vandervolgen was negligent in directing the box to be originally placed in the gangway where it was placed, and also the question whether or not Vandervolgen was actually present upon the works at the time that Vanderheyden directed - the replacing of the box in the gangway where Vandervolgen had first placed it. It may be assumed that the jury by their verdict have answered both these questions in favor of the plaintiff’s contention. It is true that on the former appeal the first of these questions was a subject of discussion in the briefs, but in the opinion then handed down no discussion of that question appeal's to have been had. So I think it was entirely competent for the plaintiff on the new trial to again present the claim and for the jury to find that the act of Vandervolgen, in first placing the box where he did in *810the gangway, was negligence, and that such negligence was the proximate cause of the plaintiffs injuries.
The jury had the right to say that the superintendent, in causing a box of the weight, shape and dimensions of this one to be placed upon its edge in the gangway where the men under him were constantly obliged to pass and repass in the prosecution of their work, and where it was liable to fall at any moment, had not exercised sufficient care to protect the men under him from the consequences of such fall, and especially not in view of the testimony that the box leaned in part against a rope tied to the gang plank which by the movement of the boat in the water was liable to be tightened and cause the box to topple over. The direction of Vaudervolgen to place the box on its side in the gangway may fairly have been regarded by Vanderheyden as a continuing authority for the latter to leave it there and to replace it there when he found it lying on its side on the floor of the gangway, and the jury might properly have so found-under the instructions of the court. "Under the evidence we may properly assume "that it was replaced upon the edge by Vanderheyden in substantially the same position in which it was first placed by direction of - the superintendent and, therefore, that his negligence was the proximate cause of the plaintiff’s injuries.
For these reasons I vote to affirm the judgment.
Kellogg, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event. •