
    Third Department,
    September, 1930.
    United States Fidelity and Guaranty Company, Appellant, v. John Dyer Jr., Respondent.
   Per Curiam.

As the evidence now stands, the plaintiff’s assignor was injured by a piece of concrete which fell down the shaft, due to the negligence of the defendant through the carelessness of his employees; and due to the neglect of the defendant in failing to perform his non-delegable duty to protect the workmen by a suitable guard in the shaft. There is no proof of contributory negligence on the part of the injured workman. The verdict for the defendant was, therefore, against the weight of the evidence. The judgment and order should be reversed and a new trial granted.—Van Kirk, P. J., Hinman, Davis, Whitmyer and Hasbrouck, JJ., concur. Judgment and order reversed on the law and the facts, and new trial granted, with costs to the appellant to abide the event.  