
    William Oehme, App’lt, v. Valentine Cook et al., Resp'ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 2, 1889.)
    
    Master and servant—Negligence.
    ' Plaintiff was injured by the fall of a bar from a crane, which would! not have happened if the preserver had been in place. There was no evi-. dence as to .when the preserver was taken away The court dismissed the-complaint, holding that in the absence of evidence as to how long the. preserver had been lacking, the jury could not draw the conclusion that defendants were negligent. Held, no error.
    
      Appeal from judgment entered upon dismissal of complaint.
    Action to recover for injuries sustained by plaintiff while in the employ of defendants. While plaintiff was working, kneeling, with his back to a crane sixteen or eighteen feet high, some fellow-workmen racked the travelling bar forward so that it became unfastened, fell and struck the plaintiff, causing the injuries complained of.
    Leopold. Leo, for app’lt; Edward M. Burghard and Lewis Banders, for resp’ts.
   Van Hoesen, J.

The evidence showed that the travellingbar fell from the crane, and struck the plaintiff. It would not have fallen if a piece called the preserver had been in its place on the ■crane. When the preserver was taken away no one of the witnesses could testify, but it was replaced after the accident happened to the plaintiff. The learned judge dismissed the complaint because it did not appear how long the preserver had been off the machine, and said that it was indispensable that there should be some evidence that the defendants were negligent in failing to replace it in a reasonable time after its removal. In the absence of any evidence as to how long the preserver had been lacking, the judge said that the jury could not •draw the conclusion that the defendants had been negligent, because for aught that appeared it might have been broken, and have fallen off at the very moment of the accident.

I think that the learned judge was correct in his ruling, and that the judgment should Ire affirmed. Bailey v. Rome, Watertown & O. R. R. Co., 49 Hun, 377; 19 N. Y. State Rep., 656.

Judgment affirmed, with costs.

Larremore, Ch. J., concurs.  