
    Seymour Gutin, Respondent, v. Frank Mascali & Sons, Inc., Appellant.
   In a negligence action by plaintiff to recover damages for personal injuries, defendant appeals: (a) from an order of the Supreme Court, Kings County, dated February 2,1960, which granted plaintiff’s motion to set aside the jury’s verdict in favor of the defendant and which restored the action to the calendar for a new trial; and (b) from the decision of the Trial Justice, upon which the order appealed from was entered. Order reversed, without costs; plaintiff’s motion to set aside the jury’s verdict in favor of the defendant denied; and the jury’s verdict in its favor reinstated. Appeal from decision dismissed; a decision is not appealable. While driving his automobile on Bast River Drive, near 96th Street, in the Borough of Manhattan, City of New York, on March 23, 1954, at 3:15 p.m., plaintiff was struck by a stone which came through the left front open window of his automobile. As the result of his injury, his left eye was removed. Defendant was charged with negligence in that plaintiff was struck by flying pieces of concrete which were produced by defendant’s “ balling ” operations alongside the thoroughfare. Such operations consisted of dropping a steel ball attached by a cable to the boom of a crane onto concrete in order to crack it. Defendant contends that its proof established that for some time prior to and at the time of the accident, the defendant’s crane was not engaged in " balling ” concrete, but instead the crane had a bucket attached to it and was being used for pouring fresh concrete in the construction of a wall. The learned Trial Justice charged the jury that if they found from the evidence that the crane was not being used for “ balling ” concrete at the time of the accident, the verdict must be for the defendant. In our opinion, a clear-cut question of fact was involved. The record fails to disclose any basis for permitting the Trial Justice to substitute his judgment for that of the jury (Mieuli v. New York & Queens County Ry. Co., 136 App. Div. 373; Solkey v. Beyer, 238 App. Div. 809; Voyes v. Kane, 240 App. Div. 710; Collins v. City of New York, 263 App. Div. 893). Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur. [22 Misc 2d 1038.]  