
    Joseph Farrelly, Appellant, v. John A. Roebling’s Sons Company, Respondent.
    Fourth Department,
    May 28, 1935.
    
      
      Oliver D. Burden and Russell E. Harrington [D. Daniel Pananicles of counsel], for the appellant.
    
      Scott Scammell and Daniel Scanlon, for the respondent.
   Per Curiam.

The nonsuit was based upon the contributory negligence of plaintiff. The record does not make very clear the movements of the crane and shovel in reference to the car that was being unloaded. Drawings were made on a blackboard and referred to in the testimony, but the drawings Were not introduced in evidence. How much opportunity plaintiff had for keeping at all times in a place of safety does not clearly appear. From the record it would appear that, at most, plaintiff’s negligence consisted of being too vigilant in returning to the end of the car where his work called him before the shovel had moved away from the point overhead where it was a source of possible danger, and in doing this contrary to instructions. Whether, under all the circumstances of the case, as shown by this record, plaintiff’s diligence in his work constitutes negligence is fairly a question for the jury.

All concur, except Edgcomb, J., who dissents and votes for affirmance. Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ.

Judgment reversed on the law and a new trial granted, with costs to the appellant to abide the event.  