
    PHILIP FITZPATRICK, Resp’t, v. BENJAMIN F. BURDICK, App’lt.
    Negligence—Evidence—Sufficiency of.
    
      Charles J. Patterson, for resp’t; Johnson & Lamb, for app’lt.
   Barnard, P. J.

The defendant has charge of the Morgan line dock in the city of New York, and of the men employed upon it. The plaintiff was a laborer on the 10th December, 1884, tiering cotton. The lifting was done by steam, and the engine which supplied the power was on the ship.

The cotton was tiered behind some wool. A rope was attached to the cotton, and it was hoisted “ part way up.”

The cotton bale, after it passed the top of the wool, was stopped. It came up against the side of the cotton tier, and when it was lifted to within a foot and a half of the top of the cotton tier, signal was given to stop; then the men shoved the cotton bale “around the north-west corner, so to speak, of the tier.” The bale, after it was shoved around the corner, “swung clear," and then the men with hooks fastened to it, and an order was given to come back. The bale was then put in place. Upon the occasion of the accident in question the defendant, while the plaintiff was pushing the bale around the corner, and before it was done gave orders to the signalman to go ahead. The bale arose and swung around, and although the plaintiff attempted to escape, the bale struck him and knocked him from the tier some thirteen or twenty feet in height. The plaintiff was injured.

The evidence is very conflicting. The defendant denied giving the order to go ahead, and some of the plaintiff’s fellow workmen state that the accident was caused by the bale swinging after the plaintiff had hooked into it, and while it was free, thus indicating that the bale was around the corner. There is no such preponderance in favor of the defendant's theory of the case as, under the rules governing appeals, will justify a reversal for that reason.

Assuming that the defendant gave the order under circumstances which ought to have informed him that the result of the order would likely cause an injury to those on top of the tier, then his negligence would have been sufficient to sustain the action.

Judgment affirmed, with costs.

Dtkman and Pbatt, JJ., concur.  