
    Richard Fitzpatrick, v. William D. Tweddle, as Executor of, etc., Thomas B. Tweddle, Deceased.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    Negligence—Cokteibutort.
    Where in an action against a dock owner to recover Sor the- value of a horse, harness and cart, alleged to have been lost by reason of. the improper condition of the dock, the condition of the dock and! the danger were obvious, and known to the plaintiff or Ms servant, and the accident was caused by the latter’s miscalculation, his negligence contributes, to the injury.
    •An action was brought to recover damages for the- Ibss of; certain property caused by defendant’s negligence. Upon & judgment dismissing the complaint, the plaintiff moved for a. new trial on a case containing exceptions ordered to be; heard atr general term in the first instance.
    
      Michael J. Scanlan, for pl’ff; Guggenheimer &■ Untermyav (.Maurice Uniermyer, of counsel), for def’t
   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 Bast Forty-eight street, which had a frontage of 100 feet on Bast river, .and extended westerly from the river 188 feet A string piece from eight to ten 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-eight 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 Iving by it. Refuse material had been permitted to accumulate on"the dock covering a space of about sixteen feet in width, and to such an extent that the upper surface of the string piece was but about two 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 boats to the carts, for removal to their yard. A derrick for hoisting material from the boats to the carts stood néar 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 reeeivthe 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; hut, 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 two o’clock in the afternoon. The driver had been engaged daring 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 barrrier, 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.

Yah Brunt, P„ J., and Parker, J., concur.  