I think that the judgment entered in this action must he reversed for failure to establish actionable negligence upon the part of defendant. The facts in connection with the accident which resulted in the death of Patrick McCabe are stated in the concurring opinion of the presiding justice. The primary. cause thereof was the carelessness of a fellow-servant of decedent in throwing the hook which was to be fastened into the sling by which the load to be lifted was bound together. Samuel Bourke, a witness called for plaintiff, thus testified: “Some man * * * threw this hook toward me, and in place of throwing it towards me, he threw it in a slanting direction, that is right, sir. * * * The beam would lay right between both of us but to one side, and there would be a space of twelve feet, running from the beam to the aft end of the hatch, and eighteen feet across, and the fellow apparently intended to throw the hook across the eighteen feet, he apparently intended to throw the hook across the eighteen feet, or a portion of it, towards me, when in fact he threw it to the side; that is right. And it caught under the upper flange, the upper flange of this beam, and the beam came out.” If the hook had caught in the “ cross hatch beam ” in the regular, usual and ordinary prosecution of the work then being carried on, and if because of the failure to bolt down this heavy piece of iron it had been lifted out of place and dropped upon decedent, it might have been a question of fact for the jury whether the master should not have foreseen this possible happening, and taken at least the precautionary measure of thus securing it. But such was not the fact. This “beam,” weighing 900 pounds, would have remained in its position forever, although unbolted, unless interfered with by some powerful extraneous force. The men had been working in that hatch for four days prior to the accident, and, so far as this “beam ” is concerned, might have continued to work there with perfect safety but for the carelessness of the man who threw the hook. Standing upon one side of the opening, measuring twelve feet fore and aft by eighteen feet across, and opposite to the gangwayman, instead of throwing it directly across the eighteen" feet separating them, he carelessly threw it in a diagonal direction so that, instead of *363reaching the hands of the gangwayman, it came in contact with the “cross hatch beam” at the limit of the twelve-foot space. Who this man was does not clearly appear, but it was not the superintendent, nor “ any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee.” (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 200, as amd. by Laws of 1910, chap. 352.) He was a fellow-workman of decedent, and for “any act or omission on the part ” of such workman defendant is not responsible. With the consent of plaintiff’s attorney the jury were instructed that such was the rule of law with respect to fellow-servants. The learned trial justice, applying this rule to the facts of this case, should have granted the motion to dismiss the complaint upon that ground. It may not be urged, in order to sustain the judgment, that it was negligence upon the part of Eourke, the gangwayman, to give the signal to start the winch until the hook was safely in his hands. Neither the notice served prior to the commencement of the action, nor the complaint as limited by the bill of particulars states this as a negligent act, and the case was not submitted to the jury upon any such theory.
The judgment and the order denying the motion for a new trial must be reversed and a new trial granted, costs to abide the event.
Carr, Stapleton and Pütnam, JJ., concurred; Jerks, P. J., concurred in separate memorandum.