
    Minnie Long, as Administratrix, etc., of Michael Long, Deceased, Respondent, v. The City of New York, Appellant.
    First Department,
    February 4, 1910.
    Negligence—death, caused by vehicle—facts not justifying recovery.
    The plaintiff’s intestate, driver of a cart, while preparing to dump the contents of the vehicle upon a scow, was crushed' by another vehicle which was being • backed up by its driver for the same purpose. It appeared that the driver of the-cart causing the injury did his.best to stop the backing horses, and that bystanders warned the decedent. On all the evidence, held, that a judgment for the plaintiff should be reversed.
    Appeal by the defendant, The City of Hew York, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of May, 1909, upon the verdict of a jury for $10,000, and also from an order entered in 'said clerk’s office on the 29th day of May, 1909, denying the defendant’s motion for a new trial made upon the minutes. . ■
    
      Theodore Connoly, for the appellant.
    
      J. Noble Hayes, for the respondent.
   Dowling, J.:

Michael Long, the plaintiff’s intestate, was a driver employed by one Rooney, a contractor, and on July 31, 1908, in the discharge of his duties had driven onto the dock at the foot of Canal street, upon the south side of which there is a public dump, and was there engaged in preparing to unload the cart belonging to his employer onto the scow which was in the river adjoining the dock.

As described by the witnesses, Long was standing on the dock with his right foot on the stringpieee thereof and his left on the ground, with his back towards the cart and facing the scow. He had hold of the tailboard of his cart, seeking to remove the same preparatory to discharging the contents. While thus engaged, a cart belonging to defendants, driven by one of its employees, was backed into place at the same stringpieee, where it was also to be discharged. There was a distance of thirty-five to forty feet between ■Long’s cart and the end of the dock, the dock being twenty-eight feet three inches wide, over one hundred feet long, with á string-piece eleven inches high. '

The carts which went upon the dock to discharge their contents into the scow were required to occupy points opposite that part of the scow in which ashes were dumped. This part was thirty-eight feet long. Long’s cart was about in the center of this space. The city’s inspector gave the order when to dump the load and as he gave the order to the driver, of the city’s cart, the same was backed into the space to the east of Long’s cart and about one foot therefrom. As the city’s cart began to -.back in, the horse backed too rapidly, although the driver did everything possible .to make the horse go ahead and cease backing by calling to him and hitting him with the reins, but the horse still continued backing rapidly, and Long was caught between' the city’s cart and the stringpieee, and, when finally released, fell to and upon the scow, whence he was removed to a hospital, where he died on August third.

There is no evidence in the case to show that the space into which the city’s cart was sought to be backed would have been too close to Long’s person for safety had the horse backed in properly. It affirmatively appears that the horse belonging to the defendant was a gentle animal, obedient and responsive to the reins, and had. never before been fractious or unruly. It appears, as wéll, that while Long kept working at the tailboard of his cart, a number of persons upon the dock, including the city’s inspector, called out, “ look out,” and the inspector shouted, “ Look out, Hike,” the decedent being the only person of that name then on the dock. Despite this, the decedent did nothing, so far as the evidence shows, to escape from his position of danger, which he might easily have done by jumping upon the stringpiece back of his cart, or by jumping to the deck of the scow below. There is naturally much confusion in the testimony as to the length of timé during which these shouts continued and before Long was struck, some of the witnesses making it as much as five or six minutes; but it is clear that he had time to. change lxis position had he chosen to do so. Upon the whole case, it is impossible to predicate any charge of negligence against the defendant, and the verdict is clearly against the weight of evidence.

The judgment and order appealed frozn should be reversed and a new- trial ordered, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

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