(dissenting). The facts are thus stated succinctly at the beginning of the Per Curiam opinion of the Appellate Division:
“ On October 12, 1953, plaintiff was injured when certain fabricated steel fell upon him and caused the loss of a leg among other injuries. Plaintiff was an employee of Bethlehem Steel Company, which was erecting a bridge in Long Island City. Bethlehem had a contract with defendant, a trucking company, under which the latter was to pick up fabricated steel at docks and railroad yards, and transport the same to the job site. The contract provided that unloading of the steel from the trucks at the job location was to be performed by Bethlehem.
“ On the day in question, two exceptionally large pieces of structural steel were loaded on a truck of defendant driven by one Henn. It was impossible to use the ordinary side stakes or stays. In order to secure the load, two encircling chains, property of defendant, were wrapped around the load and trailer platform at each end.
“ When the vehicle arrived at the job, plaintiff and a coworker climbed on the load to fasten cables known as ‘ chokers ’ in *144preparation for lifting the steel from the truck by means of a hoisting crane. Henn, in accordance with what witnesses said was the customary activity of a driver in such situations, ^removed the front encircling chain, and then attempted to remove the rear one. He did so, however, before the chokers were made taut. Thereupon, the large pieces of steel slid off the trailer, and plaintiff rolled underneath them and was injured.
“ The complaint was dismissed upon the ground that,,as the contract between defendant and. Bethlehem required the latter to unload the steel, the act of Henn in removing the chains was part of the unloading process and thus the work of Bethlehem, so that defendant was no longer liable for negligent acts of Henn.”
Under the authorities and upon the evidence in this case, it seems to me that dismissal of the complaint upon the law was correct. The contract between Bethlehem and defendant (described therein as “ The Carrier ”), in evidence as plaintiff’s Exhibit 1, provides that “ Bethlehem will unload carrier’s trucks at the site ”. It is not disputed that the latter clause applies to this operation. The reason for this clause was to enable the carrier to load the truck, and then transport it to the destination without bringing the unloading crew to that point where- Bethlehem already had its crew and the necessary unloading machinery. The only employee whom the carrier needed to have accompany the load was the driver of the truck.
These steel beams had been securely enclosed by encircling chains by the carrier’s loading crew, when they were placed upon the truck. The driver’s function on behalf of the carrier was to move the truck. It was apparent that he could not undertake to unload the truck alone, or commence, to unload it, and therefore the responsibility for unloading was placed by "the contract in unambiguous words upon Bethlehem.
■ The evidence is undisputed that Bethlehem’s unloading crew had taken over by commencing the operation of unloading before this accident occurred. There is mo contradiction of the testimony to this by Wilfred Turner, foreman of Bethlehem’s unloading gang of five men whose function and duty it was to unload this truck with the help of a crane. It was imposible- for the driver of the truck himself to unload these steel beams, and *145he could not undertake to loosen them and hold them upon the truck with his hands before Bethlehem’s unloading crew had made them secure. Bethlehem had to drive up its crane, and fasten it to, these beams and take other precautions,, so that they could be removed in safety and with efficiency before it was safe to release, the. chains. The circumstance that the chains were loosened by the driver of the truck is irrelevant. In the nature of things,, there could not be two bosses of this unloading job. Under the contract, when the driver brought the truck to its destination the carrier’s.function ended. Necessarily Bethlehem with its machinery and unloading gang had to assume responsibility at that point. If each tried to superintend this delicate and dangerous operation, the result would be chaotic. Therefore, when the driver undertook to loosen the chains, which he could only do subject to orders from Bethlehem, under clear principles of general and special employment, he became the special employee of Bethlehem. It makes no difference that express instructions were not' given. It was all part of a routine operation. The point is that appellant’s driver was at all times subject, to direction and control by Bethlehem concerning the details of the unloading operation, which was Bethlehem’s sole responsibility. It could, not have been otherwise, if Bethlehem had .already commenced the unloading operation, which it had done. In any other view there would have been a division of authority, at variance with the terms of the contract and which the. nature of the operation forbade. All of these men had to work together under single supervision, or the work could not be performed. Bethlehem’s foreman indicated to the chauffeur where to put the truck. He testified: “ Q. We now have that truck. stopped. A. Right. Q. From the time that truck is stopped until the steel is taken off that truck, whether you watch every particular job or not, when you are around, you are in complete charge of that unloading,.aren’t you? Á. .1 am.”
Again Turner testified, at all times as a witness for plaintiff: “ You could stop that truck driver, couldn’t you, from removing that chain at any time you wanted to? Couldn’t you? A. Yes, I.could. I could tell him not to take it off. Q. You have that right, haven’t you? A. Yes, I would have.”
*146Plaintiff testified that there was an established sequence of acts in the usual unloading operation, to wit: “ Q. And the usual method was that after you got onto this load with two chains holding it, that the hooking on process would take place with the chains still holding it, is that right, that is, the truck chains, right? A. Yes, sir. Q. That after the hooking on process had taken place, there would then be made a connection between the crane slings to the iron pieces, right, on the truck? A. Yes, sir. Q. Then the next thing, it would be made sure that the crane and its sling were holding the load, right? A. Yes, sir. ’ ’
“ Q. The two chains then holding, the load would then be removed after the crane held the load, is that right? A. Yes, sir.’ ’
This accident resulted from loosening the chains during the unloading operation before the crane was attached.
A coworker of plaintiff testified that “ There is one safe way you can do it: leave the safety line on there. Hook it, and then when you have got it with the crane, take your safety off, whatever it happens to be, chain, line, or whatever it is, leave it alone. Like this, they never should have been taken off.”
There is no doubt that the chauffeur took the chains off too soon. Neither is there any dispute in the evidence that Bethlehem’s unloading gang had already taken over and commenced the unloading operation. The foreman testified that the steel lie am s which did this injury rolled off during the unloading operation.
Thereafter the following occurred: 1 ‘ The Court: Mr. Turner, you as the foreman were responsible for efficiency, to see that the job was done right for the boss? The Witness: Yes. The Court: And for safety, too? The Witness: That is right.”
Plaintiff himself had confirmed that the unloading operation had commenced by testifying that he and his coemployee Baker had already been on the truck before these steel beams fell off. Referring to a time before the accident, the court inquired: ‘ ‘ Did any of your team go on the truck to do unloading, or did others do unloading and did you pick up the steel as it was unloaded? The Witness: Mr. Baker and myself.”
*147It is undisputed that the unloading operation had begun, that it went wrong due to the act of the driver who was in the carrier’s general employ but subject to Bethlehem’s orders while engaged in a single integrated operation, and that the decision of the appeal turns upon whether the driver was acting in the special employment of Bethlehem. The familiar rule is stated in Charles v. Barrett (233 N. Y. 127); Irwin v. Klein (271 N. Y. 477), and Braxton v. Mendelson (233 N. Y. 122). It is unimportant whether the question may usually be one of fact or of law. The undisputed evidence requires here that it should be decided as a question of law. There is no doubt that this driver was negligent in the part which he took in the unloading operation, that the injury to plaintiff (Bethlehem’s employee) resulted from that act of negligence, but neither is there any dispute in the evidence that the driver was wholly subject to the direction of Bethlehem’s foreman, or that Bethlehem’s unloading gang had already entered upon the operation of unloading for which Bethlehem had assumed responsibility pursuant to the unambiguous requirement of the written contract. It is true that where an employee is acting in furtherance of the business of his general employer, there is no inference of a new relation of employment '1 unless command has been surrendered, and no inference of its surrender from the mere fact of its division ” (Charles v. Barrett, supra, p. 129), but where command has been surrendered, as it without contradiction was and had to be in this instance, the general employer is no longer liable notwithstanding that the employee, in a general way, is still furthering its business. The judgment of the Appellate Division should be reversed, with costs, and that of the Trial Term should be reinstated, dismissing the complaint.
Conway, Ch. J., Dye, Fuld, Froessel and Burke, JJ., concur with Desmond, J.; Van Voorhis, J., dissents in an opinion.
Order affirmed, etc.