
    Joseph T. Ross, Appellant, v. Rodgers & Hagerty, Inc., Respondent.
    
      Ross v. Rodgers & Hagerty, Inc., 178 App. Div. 904, affirmed.
    (Argued March 13, 1919;
    decided April 8, 1919.)
    Appeal from a judgment entered May 9, 1917, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint in an action under the. Employers’ Liability Law to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff was employed by defendant, a contractor engaged in the construction of a sewer, as one of a gang of workmen engaged in discharging gravel and dirt from cars, and was injured through the dumping of one of the cars towards the side where he was standing. The theory of negligence submitted to the jury was that Richards, the defendant’s foreman, negligently gave the order to dump the second car at a time, and under such circumstances, that a reasonably prudent man, exercising ordinary care, would have anticipated that one or more members of the gang would, reasonably conclude that the order was directed to them, and would dump the car from left to right, at a time when plaintiff was in a position on the other side of the car where he must necessarily be injured, if they, or either of them, did so dump the car.
    
      Sydney A. Syme for appellant.
    
      Frank Verner Johnson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Chase, Cardozo, McLaughlin and Andrews, JJ. Dissenting: Hogan and Pound, JJ.  