
    FITZPATRICK v. TWEDDLE.
    (Supreme Court, General Term, First Department.
    November 17, 1893.)
    ' Contributory Negligence—What Constitutes.
    In an action against the oWner of a dock to recover the value of a horse, harness, and cart, backed by plaintiffs servant into the river, and lost, on the ground that refuse had been permitted to accumulate against and nearly cover a stringer intended to prevent vehicles from backing into the river while being loaded, it appeared that the condition of the dock and the danger were obvious; that such servant had been working there all the day of the accident and the day befóte; and that, by miscalculation, he missed a cleat on the stringer against which he undertook to back the cart. Held, that the complaint was properly dismissed, because the negligence of the servant contributed to the injury.
    Action by Richard Fitzpatrick against William D. Tweddle, as executor of and trustee under the will of Thomas B. Tweddle, deceased, to recover damages for the loss of certain personal .property caused by defendant’s negligence. There was a judgment dismissing the complaint, and plaintiff moves for a new trial on a case containing exceptions ordered to be heard at general term in the first instance.
    Denied.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER JJ. o
    Michael J. Scanlan, for plaintiff.
    Guggenheimer & Untermyer, (Maurice Untermyer, of counsel,) for defendant.
   FOLLETT, J..

This action is for the recovery of damages for the loss of personal property caused, it is alleged,, by the negligence of the defendant. On the 10th of December, 1891, and for five years previous thereto, the defendant was the owner, as trustee, . and in possession, of a dock on the north side of East Forty-Eighth street, which had a frontage of 100 feet on East river, and extended westerly from the river 188 feet. A string piece from 8 to 10 inches square was fastened along the east edge of the dock, to prevent carts from being backed into the river. Campbell & Co. were dealers in broken stone and sand, having a place of business on the south side of Forty-Eighth street, and 100 feet west of the river. Before the accident, Campbell & Co. had used the dock for the purpose of unloading their material from boats lying by it. Refuse material had been permitted to accumulate on the dock covering a space of about 16 feet in width, and to such an extent that the upper surface of the string piece was but about 2 inches above the surface of the material which lay against the stringer. This accumulation was at the place where the material of 'Campbell & Co. was discharged from the boats to the carts, for removal to their yard. A derrick for hoisting material from the boats to the carts stood near the place where the material had accumulated, and the part of the dock which was not incumbered by refuse material was not as convenient for the purposes of Campbell & Co., but it might have been used by them. On the 10th of December, 1891, the plaintiff, through his employes, was engaged with two carts in taking the material from a boat to the yard of Campbell & Co., which work was begun on the day previous. The empty carts were driven on the dock, and then backed down to its edge, for the purpose of receiving the material from the derrick. On this stringer there was a cleat two feet and four inches long, and about five inches high, which was used for the purpose of fastening vessels to the dock. At the time of the accident the driver of one of the plaintiff’s carts backed down towards the edge of the dock, intending that one of the wheels of the cart should strike against the cleat, and so check its motion; but, by a miscalculation of the driver, the wheel did not strike squarely against the cleat, but passed by one end of it, and the horse, cart, and harness went into the river, and were lost. The only negligence complained of is that the defendant permitted the refuse material to accumulate against the string piece, so that it did not present a sufficient barrier for the carts. The accident occurred about 2 o’clock in the afternoon. The driver had been engaged during all of that day and the day before in unloading the boat. It was testified that the situation of the dock was apparent and the danger obvious. Instead of expending a little labor in removing this refuse material to one side, so as to have uncovered the stringer, which would have presented a sufficient barrier, the plaintiff’s employes preferred to use the dock in its then condition. At the close of the plaintiff’s evidence, the complaint was dismissed, on the ground that the negligence of the plaintiff’s driver contributed to the accident. This is plainly so. He took the chances of using the dock in the condition in which he found it, and made a miscalculation, by which the plaintiff’s property was lost. The judgment should be affirmed, with costs. All concur.  