
    Joseph McGuinness, Respondent, v. Rodgers & Hagerty, Inc., Appellant.
    First Department,
    July 9, 1915.
    Uegligende— injury to pedestrian while crossing street at a point where curbstones were being unloaded — contributory negligence.
    A person thoroughly familiar with work which had been and was being conducted in a public street, who, although he saw two men holding a curbstone ready to let it fall, rushed between the curb and a car from which the stones were being unloaded, in a space of about six to eight feet, although there was plenty of room on the other side of the car, and was injured by the falling of the stone, is guilty of contributory negligence.
    Under such circumstances the employees handling the stones were not guilty of negligence.
    Appeal by the defendant, Rodgers & Hagerty, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 22d day of December, 1914, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of January, 1915, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward F. Lindsay of counsel [Frank Verner Johnson, attorney], for the appellant. ■
    
      Vine H. Smith of counsel [Martin T. Mantón, attorney], for the respondent.
   Clarke, J.:

The defendant for some time had been engaged in doing certain work in connection with the construction of the subway in The Bronx. At the intersection of One Hundred and Forty-fourth street and Mott avenue the trench which had been dug had been re-covered and Mott avenue had been paved. The sidewalk at the southwest corner of the avenue at One Hundred and Forty-fourth street was decked over with a wooden platform from which three steps led down into One Hundred and Forty-fourth street. There was a fence running east and west near the curb line of One Hundred and Forty-fourth street which ended at the building line of Mott avenue, leaving an open space for pedestrians desiring to cross the street beyond the easterly end of this fence. There was a building on this southwest corner which had a drug store on the ground floor and above it were apartments to which the entrance was the second door from the corner of Mott avenue. The passageway, therefore, along One Hundred and Forty-fourth street was on the decked-over portion and between the fence and the building line so that a person going east had the fence at his left hand. The plaintiff was the proprietor of a stationery and cigar store located on the north side of One Hundred and Forty-fourth street two doors east of Mott avenue. He was thoroughly familiar with the work which had been and was being conducted- at this place. There was a railroad, called a dinky road, on the surface of Mott avenue used for the transportation of building materials used in construction. On the 24th of November, 1913, the curb on One Hundred and Forty-fourth street had not been set. There were three flat cars on Mott avenue loaded with curbstones. The end car was standing partly north and partly south of the end of this fence. The plaintiff locked up his store and went to the entrance of the apartment beyond the drug store on the southwest corner to deliver some cigarettes to a customer. Having done so he came out and started back on the southerly side between the fence and the building going east to go back to his store, the fence being at his left. At this time some of the curbstones had been unloaded from the car by laborers and were lying on the ground; the way this was done was to slide them from the car to two men on the ground who received them, dropped the end on the ground and then let them fall down. He testified that when he got to One Hundred and Forty-fourth street and Mott avenue he could not continue the way he was going because there was a line of flat cars blocking his way. He turned around and headed north to cross One Hundred and Forty-fourth street. He was about on the crosswalk on the westerly side of Mott avenue, walking, proceeding north, and had left the curb about four feet. The end of the fence to his left as he turned to go north was about. six or eight feet. Between him and the fence as he turned he saw two workmen holding the curbstone on end. He passed in front of the men, who were to his left about three feet from where he was walking. As he got opposite to them he happened to see out of the comer of his eye the stone starting to fall and he jumped to his right. The stone fell on him and broke his right leg, the furthest from the stone. He said the men handling the stone were about eight feet from the car, about seventeen or eighteen feet away from the spot where he first noticed the car. They were ten feet from him when he first noticed them. These men while he was traveling ten feet were standing still; the stone was end up and they were holding it in that position. I don’t know as I expected them to do anything with it. I thought I had plenty of time to cross. * * * I did not give it any thought, as to what they were going to do with it, no, outside of the fact I seen them there standing holding it. ” When the stone fell it fell towards the east, towards his store and the car on the track, so that when he was hit he was going between the stone and the car on the track, a space about six to eight feet, and they were away from the end of the fence six or eight feet.

His witness May Twiggs testified that she was standing in front of the drug store, and that looking along at the end of this fence she could see the flat cars on the track; that they were loaded with curbstone, and she saw men unloading them; that she saw those men carrying these stones and putting them in at the curb fine of the sidewalk; that McGuinness as he came along passed close by her, so that if he looked ahead he could ■ see all these things that she saw. The plaintiff’s other witness Losee also testified that the plaintiff was walking at the time of the accident, but he had signed and sworn to a written statement on December 12, 1913, in which he said: “I saw McGuinness come running from behind a fence '■ * * and start across Mott Avenue diagonally in the direction of the northeast comer of Mott Ave. and One Hundred and Forty-fourth street. He ran into the curbstone when it was falling and came so swiftly that the accident was unavoidable.”

The testimony of the defendant, given by three witnesses, is that he was running diagonally, or cutting across towards his own place, which was near the northeast comer, and that there was nothing to obstruct his way if he had gone straight north, ' as he claimed that he did. The- plaintiff swore himself that he had locked the door of his store at that time and wanted to get back there as quickly as he could.

It seems to me, that knowing the situation thoroughly, that the process of construction was going on, that the curb had not been laid, but that the stones were being unloaded for that purpose* when he undertook to pass in the narrow space between the men whom he saw holding the curbstone on end and the car, which must be the fact, for he said the stone fell towards the east, which corroborates the testimony of the defendant, that he was going diagonally across, that he was guilty of contributory negligence, and that there was no actionable negligence on the part of the employees of the defendant. The weight of evidence is that he was running, but assuming that he was walking, he either paid no attention or thrust himself into this narrow space between the stone and the car when there was plenty of room, as he himself testified, on the other side.

I think the motion to dismiss should have been granted. The finding of the want of contributory negligence and of the actionable negligence of the defendant should be reversed.

The judgment and the order appealed from should be reversed, with costs to the appellant, and the complaint dismissed, with costs.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred. . '

Judgment and order reversed, with costs, and complaint dismissed, with costs.  