
    RICCIARDI, Appellant, v. CUNARD S. S. CO., Limited, Respondent.
    (Supreme Court, Appellate Term.
    June 1, 1906.)
    Appeal from Municipal Court, Borough of Manhattan, First District. Action by Pasquale Ricciardi against the Cunard Steamship Company, Limited. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded.
    Palmieri & Wechsler, for appellant.
    Lord, Day & Lord. (Charles J. Fay and Goldthwaite H. Dorr, of counsel), for respondent.
   CLINCH, J.

The plaintiff sues to recover damages claimed to have been sustained by him on or about the 18th of November, 1905, while on board the defendant’s steamship Carpathia, engaged in leveling coal that was being dumped into one of the bunkers of the steamship. After the plaintiff had called four witnesses and proposed to call another, plaintiff’s attorney, on being asked by the court what he expected to prove by the additional witness or by other witnesses he had not yet called, stated that he did not expect to establish any new facts by such witness or by the other witnesses he had not yet called, and that their testimony would be merely cumulative of the testimony of the witnesses who had already testified. The court thereupon of its own motion dismissed the complaint and ordered judgment for the defendant. The description of the situation of the bunkers into which the coal was being dumped, of the second bunker referred to upon the trial, of the doors leading into these bunkers, of the fireroom, of the passageway leading into the fireroom from the second bunker, and the question whether the shoveling of the coal by the firemen of the ship contributed to the accident to the plaintiff, are not so clear as to enable the court to say, upon the evidence included in the return, that there was no evidence whatever to establish any negligence on the part of the firemen of the ship, who were the defendant’s employés. For this reason the judgment should be reversed, and a new trial ordered. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  