
    Maurice Kelly, App’lt, v. The Pelham Hod Elevating Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 13, 1893.)
    
    Negligence — Non-suit.
    To justify a non-suit in an action of negligence on the ground of contributory negligence, it must clearly appear that no construction of the evidence and no inference from the facts will warrant a contrary conclusion.
    Appeal from judgment dismissing the complaint
    The plaintiff sued to recover his damages for injuries received August 15, 1890, in a lot bounded by York, Gold, Front and Bridge streets, Brooklyn, by being hit on the head by a boom owned and operated by defendant in excavating on said premises, said boom having fallen by reason of defective ropes or appliances supplied by defendants for raising and lowering it. Defendant denied its liability.
    On the trial it appeared that plaintiff was working as a laborer for one Buckley, a contractor, who was to erect a gas-tank on the premises. At the time of the accident an excavation was being made for the tank. Kelly was in the cut, and it was his duty to hook on buckets or tubs full of dirt or clay to a block attached to the outer end of the boom of a derrick supplied by defendant for hoisting the materials out of the cut. He was working around these tubs about two half days before he was hurt. The apparatus consisted of an upright mast fastened in the ground. To this a boom about thirty feet long was attached so as to swing around. This boom was raised by means of a wire rope running from the end of the boom over the top of the mast or upright and down to a drum, around which it was wound bv steam power. The boom did not slide up and» down the mast, but when it was raised it approached toward the perpendicular, and thereafter when it was lowered toward the horizontal'. There was a second drum around which was wound a second wire rope attached to a block at the end of the boom for the purpose of raising or lowering it so that the buckets containing the material excavated could be attached or removed. Defendant supplied all the machinery and had its own servants in charge thereof.
    The injury to plaintiff occurred in this way: He was in the cut waiting to hook on a bucket to the block at the end of the boom when, without any warning, it “ came down with -one slash on ” his head. Ordinarily, at the stage of the work immediately preceding the accident to plaintiff, the boom remained stationary six or seven feet above plaintiff’s head. A stone had been taken out of the cut by means of a chain attached to the boom ; plaintiff went into the cut, put up his hand to remove the chain so that he could hook on his bucket, and the boom fell on his head. The cause of the fall was that the wire rope by which the boom was raised and lowered was fastened to the drum by a piece or strand of manilla rope; in lowering the boom on this occasion the manilla strand broke and all the wire rope was unwound from the drum, causing the boom to fall with a crash to the ground, injuring the plaintiff.
    On the occasion of the accident the boom was ten or twelve feet above plaintiff’s head when the rope gave way, and it fell sideways, not in a straight down 'movement The witness Fazakerly says that he was three feet away from the boom when it came down, and he had to give a couple of pretty hard jumps to get out of the way.
    The witness Dougherty testified that, previously to the time this manilla strand was used, the wire rope used to go through a hole in the drum, and a knot was sometimes made in it to make it fast.
    The plaintiff testified that he could not tell very much about the construction of the derrick ; he had never worked around it, except for parts of two days. “ / was not aware of any danger attending my work there at that time.''
    
    The plaintiff was knocked senseless by the fall of the boom and did not recover consciousness until the next day.
    At the close of plaintiff’s case the court dismissed the complaint on the ground of contributory negligence solely.
    
      John, D. Bell, for app’lt; John E. Eustis (Geo. S. Coleman, of counsel), for app’lts.
   Dykman, J.

This is an action for the recovery of damages resulting from personal injuries sustained through the negligence of the defendant.

The plaintiff was nonsuited at the circuit upon the ground of contributory negligence on his part, and the appeal is from the judgment dismissing the plaintiff's complaint.

To justify the nonsuit of a plaintiff in an action of negligence upon the ground of his contributory negligence it must appear clearly that no construction of.the evidence and no inference drawn from the facts will warrant a contrary conclusion. If the facts be such that men of ordinary prudence and judgment would draw different inferences, and reach different conclusions upon them, then the question is for the jury and not for the court. Stackus v. N. Y. C. R. R. Co., 79 N. Y., 464.

Our'conclusion is that this case is not so plain and clear upon the question of contributory negligence as to justify its withdrawal from the jury, and the judgment should be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.  