
    William Hruska, Respondent, v. James Stewart & Co., Inc., Appellant.
   Plaintiff, an employee on the night shift in an aircraft plant, left the plant and proceeded through an addition to the building which was under construction by the appellant, a contractor, and continued out into adjoining land. His purpose was to use the open land as a toilet. In the darkness he fell into an excavation which appellant had made near the edge of the new building. There were toilet facilities provided by plaintiff’s employer inside the plant. Judgment, entered on the verdict of a jury in favor of plaintiff, reversed on the law, with costs, and the complaint dismissed on the laW, with costs. Plaintiff has not established negligence on the part of the defendant or his own freedom from contributory negligence. A new trial would be granted on the ground that the verdict is against the weight of the evidence on the issues of negligence, contributory negligence, and the amount oí the verdict; on the ground that it was error to exclude evidence offered by the defendant that barricades were placed around the excavation prior to the accident and were found in position when the defendant returned to its work after the accident, and on the ground that it was error for the Trial Justice to state repeatedly that the evidence of the subsequent condition was of no value. Hagarty, Acting P. J., Adel and Sneed, JJ., concur; Nolan, J., concurs in the result; Carswell, J., concurs for reversal but dissents as to dismissal of the complaint and votes to grant a new trial because of errors in the exclusion of evidence.  