
    Alfred Hopper, Respondent, v. William Benne, Appellant.
    First Department,
    July 12, 1906.
    Uegligenee — workman injured by backing truck in driveway intended for the exclusive use of .teams — judgment for plaintiff reversed.
    A truckman on a pier in a driveway which is two feet below the freight platform and is intended for the exclusive use of vehicles has a right to move in an ordinary way and is not negligent in failing-to look behind him or give warning before hacking around preparatory to leaving the pier, but may assume that any one working in the driveway will he watchful of his movements.
    Hence, an employee familiar with the use and management of the pier who is caught between a backing truck and the platform while standing in the driveway with his back turned to moving teams and heedless of their movements, cannot recover from, the owner of the truck for injuries sustained.
    Appeal by tbe defendant, William Benne, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January, 1906, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 5th day of April, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. Stewart Ross, for the appellant.
    
      Joseph Steiner, for the respondent.
   Houghton, J.:

The accident for which it is'claimed the defendant is responsible occurred at a pier at which plaintiff had been employed, and with the use and management of which he was entirely familiar. At the side of the driveway intended for teams alone, was a platform about two feet in height upon which freight unloaded from vessels was placed, and to which trucks could back or drive alongside to be loaded.

Plaintiff was standing at the edge of the driveway, examining a box of fruit which, for some reason, had been placed there instead of on the platform. A truck in charge of defendant’s driver had been loaded, apparently while standing alongside, and in wheeling around to drive away, was backed up and plaintiff’s leg was caught between the wheel and the platform, inflicting the injuries for which this action is brought.

There is no claim that it was not necessary or proper for the driver to back his team. The ground of negligence upon which the plaintiff has recovered is that the driver omitted to look behind him to see whether any one was on the driveway liable to be backed into, or to give warning that he was about to back his truck.

The driveway was for the use of teams and trucks, and it was to be expected that they would move about. The driver had a right to assume that any foot passenger on the drivéway, or any one working thereon, would be watchful of his movements. There is no charge that he moved too far or too rapidly, or unnecessarily. He had a right to move in an ordinary and proper way, and had the right to back his truck for the purpose of getting in position to drive from the pier. The record discloses no facts upon which any negligence on his part could be properly founded. In addition, it was incumbent upon the plaintiff to be on the lookout. He was working with his back to moving vehicles, and in a place devoted to them. Ho one could wantonly run him down, nor could he heedlessly maintain his position regardless of the proper movements of any one driving along. If he had paid any attention he could have easily stepped aside and avoided the injury which he suffered.

The record discloses no ground upon which the defendant can be held liable, and the judgment must be reversed.

The judgment and order should be reversed, and a new trial granted, with one bill of costs to the appellant to abide the event.

McLaughlin, Laughlin and Olarke, JJ., concurred; Patterson, J., dissented.

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