
    Paul Weizinger, Respondent, v. Erie Railroad Company, Appellant.
    
      Negligence — injury to an employee of the'consignee of iron beams improperly piled by another employee on a dock —failure to move for a verdict a second time after a case had been reopened — the waiver, if any, is cured, by a motion for a new trial.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that upon the arrival at a pier, of which the defendant, a railroad company, was the lessee, of a barge loaded with iron beams, which had been transported by the defendant, a truckman employed by one Happel, the consignee of the beams, superintended the piling of the beams on the pier; that on.the following day the plaintiff, with other employees of Happel, by direction of their employer, went to the pier to sort the beams, and that, while so engaged, a beam fell from a pile which had been improperly piled and injured the plaintiff.
    
      Meld, that the plaintiff could not recover against the railroad company for the reason that it was his employer and not the company that was responsible for the improper piling of the beams, and for the further reason that the plaintiff, who was an experienced workman, had assumed the apparent risk of the beam slipping;
    That the reopening of the case after counsel had summed up to the jury, and the introduction of some unimportant evidence, did not make it incumbent upon the defendant to renew the motion which it had made when the case was previously closed for the direction of a verdict in its favor, under penalty of being deemed to have conceded that when the case was finally closed there was evidence which required its submission to the jury; '
    That, assuming, however, that the defendant had waived the benefit of its motion for the direction of a verdict, the question whether there was sufficient evidence to justify the jury in rendering a verdict in favor, of the plaintiff was presented on an appeal from an order denying a motion made by the defendant for a new trial upon the minutes and upon the exceptions taken at the trial and upon all the grounds set forth in section 999 of the Code of Civil Procedure.
    Appeal, by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sew York on the 23d day of December, 1904, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 29th day of December, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Winfred T. Denison, for the appellant.
    
      Ira Leo Bamberger, for the respondent.
   Ingraham, J.:

The defendant, for the: purpose of receiving and discharging-freight at the city of New York, is the lessee and in possession of a pier at Forty-ninth street and the North river, known as “ Pier 49,” .It received for transmission to New York a certain quantity of iron beams or girders, which were bróught to this pier by a barge owned by the defendant and in charge of its employees. This barge, arrived at Pier 49 about June 19, 1902; One Happel, to whom these beams had been consigned, having been notified of their arrival, sent á truckman to take charge of unloading them from the barge. They were unloaded under the direction of this truckman, the captain of. the barge having been employed to assist in unloading them, Happel paying him for the services thus rendered. The truckman gave directions as to where these beams should be placed on the dock, so as to -make it. easier to get them in proper order. The truckman testified, and his testimony was not contradicted, that lie was “ superintending the piling of those beams, and they were piled in the way I directed them to be piled. And I receipted to the Erie Railroad ’Company'for those goods on behalf of Mr. Happelj my employer.” On the following morning, June 20, 1902, the plaintiff, who’was employed by Happel, was with other employees’ of Happel directed to go to Pier 49 and to pick out the iron beams, or girders that were upon the dock and sepárate them. He went to the dock for that purpose and received ’ directions as to the work from the bookkeeper employed by Happel. The men found the beams piled tip on .the dock, and under the direction of- Happel’s bookkeeper commenced to sort the beams. ‘ Those marked with the letter “A” .were to be used in the sub-cellar' of the building, which Happel was erecting; those marked “ B ” in the cellar,, and so on. Plaintiff and the other men einployed by Happel commenced to lay the beams apart in their regular order, according to their lettering,, so that they could .be carted off the dock in the order in which they were to- be used. This bookkeeper was standing on the stritigpieee. of the dock, facing the plaintiff and other men who were engaged in this work, just behind the pile of beams at which the men were working. The plaintiff testified that there was a. pile of three or four beams, and just behind it a large pile which was about four feet in height; that the men first sorted the small pile, which was about five feet away from the larger pile; that the larger beams weighed from 1,800 to 2,000 pounds each; that as these men were engaged in moving the last beam of the small pile, the plaintiff standing between this single beam and the larger pile, a beam upon the larger pile fell, catching the plaintiff’s foot and causing a serious injury.

There was evidence to show that this larger pile had been improperly piled. The plaintiff testified positively that he did not touch the larger pile, and that nothing that he did to it could have caused the beam to fall. The theory upon which the plaintiff claims to hold the-defendant liable was that this pier was a public dock, and that the defendant was responsible to any one lawfully upon the dock for the improper or insecure method in which these beams had been piled. It is quite clear, however, that it was the plaintiff’s employer, and not the defendant, who was responsible for the method adopted in piling these beams, and that if there was any improper method adopted, it was Happel or his employees, and not the defendant, that was liable. An entirely different question would have been presented if this pile had fallen and injured a person lawfully upon the dock not engaged in unloading and taking away the beams which had been consigned to Happel and over which he had assumed control. The plaintiff was doing Happel’s work. The method adopted was that prescribed by Happel, or those representing him, and a neglect in adopting a proper method to pile the beams was the negligence of the plaintiff, or his fellow-workmen, for which the defendant was not responsible. The risk of an injury resulting from the slipping or falling of these beams was a risk incident to the work in which the plaintiff was engaged. The method adopted in piling these beams was a part of the work m which plaintiff was engaged and was perfectly apparent to the plaintiff who was an experienced man in work of this kind. The danger of beams slipping, resulting from the method in which they were piled, was apparent, and when the plaintiff placed himself in a position alongside of this larger pile alleged to have been improperly ' piled, he took upon himself the risk of the beams slipping while ■engaged in this work; and clearly the defendant cannot be held responsible for a negligent act of the plaintiff or the other employees of Iiappel’s that occasioned these beams to slip. (See Carroll v. Mayor, 29 App. Div. 420; affd., 159 N. Y. 559; O’Connell v. Clark, 22 App. Div. 466; S. C., 75 id. 619; Downes v. Elmira Bridge Co., 179 N. Y. 136.)

The plaintiff, however, insists that as the defendant failed to make a motion to dismiss the complaint or direct a verdict after all the testimony had been taken, it conceded that there was evidence that required the submission of the question to the jury. It seems that .after the close of the defendant’s case both parties rested, when the defendant made a motion to direct a verdict for the defendant. That motion was denied and counsel for the defendant excepted. The counsel then proceeded to sum up to the jury, and subsequently the case seems to have been reopened and one witness if as recalled by counsel for the defendant and one was recalled by counsel for the plaintiff, and a few unimportant questions asked them, When the court proceeded to charge the jury. We think that the failure of the defendant to renew its motion after this reopening of the case was not a waiver of its former motion to direct a verdict for the defendant, which had been denied and to which it had taken an exception. The case had been closed and counsel had summed up to the jury. This reopening of the case did not substantially change the position. The court had announced its decision upon all the evidence, and the additional evidence taken was not at all material to the linal determination of the motion to direct a verdict ; but after the verdict' was reached there was a motion for a new trial which was denied, and an order entered from which the defendant has taken an appeal. The motion for a new trial was upon the minutes, and upon all the exceptions taken upon the trial, and upon all the grounds set forth in section 999 of the Code of Civil Procedure; and assuming that the defendant had waived its motion for the direction of a verdict and that an exception to a denial of that motion was not available, the question as to whether there was évidence to justify the verdict of the jury is presented on. the .appeal from the order denying the motion for a new'trial.

It follows that the judgment and order appealed, from must be reversed and a new trial granted, with costs to the appellant to abide the event.

O’Brien, P. J., McLaughlin and Hatch, JJ., concurred j Patterson, J., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  