
    Luke Reilly, an Infant, by Margaret L. Reilly, His Guardian ad Litem, Respondent, v. Barber Asphalt Paving Company, Appellant.
    First Department,
    February 7, 1913.
    Negligence — injury to child by falling into hot asphalt — duty of company repairing pavement to maintain guards or barriers — nonsuit.
    Where in an action against an asphalt paving company engaged in repairing a pavement to recover for burns sustained by a girl between two and three years of age, who broke away from her sister, about nine years of age, went to the edge of the sidewalk and fell into the hot asphalt, it appears that the employees of the defendant were only a short distance away; that the place was not near a crosswalk; that there was a barrier at each crosswalk; that the asphalt would cool in a very short time, and that no similar accident had ever occurred, a judgment against the defendant upon the ground that it was negligent in not having a guard stationed upon the sidewalk or in not maintaining a barrier around the place, should be reversed and the complaint dismissed.
    Appeal by the defendant, the Barber Asphalt Paving Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1912, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 25th day of April, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederick W. Catlin, for the appellant.
    
      Harold A. Callan, for the respondent.
   Per Curiam :

On the 4th of August, 1910, the defendant, under a contract with the city of Hew York, was engaged in repairing a portion of Eighth avenue between One Hundred and Fifty-second and One Hundred and Fifty-third streets. The repairs consisted in putting down asphalt over spots or small places where it had been worn out. When the asphalt was put down it was heated to a high temperature, then allowed to cool and a roller of heavy weight put over it. One of these spots was some twenty-five feet in length and two or three feet in width. At the time in question the plaintiff— between two and three years of age, in the custody of his sister, about nine years of age — was on the sidewalk immediately adjoining this spot, when he suddenly broke away from her, went to the edge of the sidewalk and fell into the asphalt, sustaining burns about the hands and face. This action was brought to recover the damages sustained. He had a verdict and defendant appeals.

It is sought to sustain the recovery upon the ground that the defendant was negligent in not having a guard stationed upon the sidewalk to warn the plaintiff, or having some barrier around the spot to prevent his falling into it. This was the theory upon which the case was submitted to the jury.

There was practically no conflict in the testimony. It showed that the asphalt, when put down, would cool in a very short time; that the employees of the defendant were only a short distance from it, waiting for it to cool so that the roller could be put over it; that this spot was not near a crosswalk, but in a part of the roadway where pedestrians did not ordinarily go; that there was a barrier at each crosswalk to prevent people walking or driving on that portion of the street; that for upwards of ten years similar work had been done in a similar way, during which time an accident like this one had not occurred, and that no different precautions had been taken.

We think it would be unreasonable to hold, considering the temporary character of the work being done, that the defendant was negligent in not anticipating that an accident of this kind might occur. The finding of the jury that it was negligent is without evidence to sustain it and for that reason the motion to dismiss should have been granted. The judgment appealed from is reversed and the complaint dismissed, with costs of the action in this court to the defendant.

Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

Judgment reversed and complaint dismissed, with costs of the action and in this court to the defendant. Order to be settled on notice.  