
    Michael Dooley, Respondent, v. The Degnon-McLean Contracting Co., Appellant.
    (Supreme Court, Appellate Term,
    December, 1904.)
    Action for negligence — Defendant not required to protect structures not intended for transit — Assumption of risk.
    Plaintiff, an inspector of sewers, walked out on a beam over defendant’s excavation and was struck and knocked off by a slack cable.
    Held, as the beam was not intended as a place of crossing, defendant was not required to foresee plaintiff’s presence thereon and owed him no duty to keep it free from swinging cables. Plaintiff’s feat of acrobatic prowess was at his own risk.
    Appeal by defendant from a judgment of the City Court of the city of Hew York, entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial. Action for negligence.
    Parker & Aaron (Herman Aaron and Loren Wood, of counsel), for appellant.
    Denis A. Spellissy, for respondent.
   Bischoff, J.

The recovery in this case lacks essential support upon the basis of the defendant’s negligence.

The plaintiff, an inspector of sewers, having occasion to make certain check ” marks in the defendant’s excavation for the rapid transit subway tunnel, walked out upon a beam over the excavation, and, when in this position, was struck by a slack cable attached to a traveling bucket, with the result that he lost his balance and sustained injuries.

This beam (one of a line of braces to the retaining wall of the excavation) had a surface width of eight inches, was twenty-two feet long, and spanned an excavation of that width having a depth of thirty-two feet.

The negligent omission asserted is the defendant’s failure to cause the cable attached to the bucket to be held by a hanger ” above the line of these bracing beams, but it is impossible to hold that the defendant was under any such duty to the plaintiff.

Assuming that, by reason of his duties, he was a person invited upon the scene of this work, and so entitled to the exercise of reasonable care for his protection, there is no inference that the defendant should reasonably have expected his presence upon this beam and have adopted devices for keeping the particular place clear from the passing cable. Bridges were provided at fairly close intervals for the crossing of the excavation, but this beam was not a place of crossing in any reasonable aspect, and the defendant was not to anticipate the plaintiff’s confidence in his own acrobatic prowess.

Upon a bridge, the passing of a slack cable may well have been a thing of no danger, while very dangerous to one whose foothold depended upon an accurate balance on a narrow beam, but the defendant owed no duty to guard the plaintiff from this latter condition, the risk of which he clearly assumed himself. It may have been more convenient for him to work from the beam than from below, but it was not essential, as appears, and the defendant could not be required to expect, without notice, that this dangerous place was to be used for a purpose for which it was obviously not intended.

The circumstances do not suggest notice of a necessity for the plaintiff’s presence upon the beam, in any way, and an invitation to place himself in that position is not to be implied from the occasional use of the beams by the defendant’s Employees, in disregard of the apparent intention of the defendant as indicated by the arrangement of bridges for safe crossing. See Victory v. Baker, 67 N. Y. 366.

Apart from the question of the failure of proof of negligence, which we have discussed, there was error in the court’s statement that the matter of the surrounding arrangements was immaterial, this statement having been made in refusing defendant’s request to charge, and its effect being necessarily to withdraw the question referred to from the jury.

The judgment and order appealed from must, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Gildersleeve, J., concur.

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