William Redhead, Appellant, v. Dunbar & Sullivan Dredging Company, Respondent

William Redhead, Appellant, v. Dunbar & Sullivan Dredging Company, Respondent. Third Department, November 14, 1906. Evidence — expert testimony of customary placing of counterpoise on 'derrick—sufficient allegation of freedom from contributory negligence •— acting in emergency. In an action to recover for injuries sustained by the falling of a derrick, where the evidence shows that the position of the' counterpoise tended to make the derrick unstable, it is error to refuse to allow an expert to testify as to the usual manner in which a counterpoise is placed. An allegation that the injuries were caused without any negligence on the part of the plaintiff is a sufficient allegation of freedom from contributory negligence under the Employers’ Liability Act. Where the plaintiff saw the dredge tip and left his work to ascertain the cause or seek safety, lie cannot be said to be negligent as a matter of law. ' Appeal by the plaintiff, William Redhead, from a jndgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 2d day of November, 1905, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Rensselaer Trial Term. Upon a trial before the court and a' jury the plaintiff was non-suited and he appeals from the judgment rendered thereon. Plaintiff, as defendant’s servant,- was operating a movable steam derrick which, while being operated in the ordinary manner, partially overturned and injured the plaintiff, for which he seeks to recover damages. The construction and operation of the derrick was such that a counterpoise was necessary to maintain it on it's, base and prevent from tipping over when it worked. The evidence tended to show that by placing the counterpoise twenty or thirty feet above the point of support of the machine it- had a tendency to render the machine unstable and cause it to tip over. - Charles I. Webster, for the appellant. J. Murray Downs, for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: The plaintiff’s exception to the refusal of the court to adow an expert to testify as to the .usual way in which a counterpoise is placed upon such a machine was well taken. The evidence in the case tended to show the defendant negligent in the manner in which the counterpoise was placed. As there is to be a new" trial we will refer to two other matters which came up on the trial. The allegation in the complaint that the facts were all and each without any fault or negligence on the part of the plaintiff is a sufficient allegation of the plaintiff’s freedom from negligence under the Employers’ Liability Act (Laws of 1902, chap. 600). It cannot be said, as a matter of law, that after the dredge began • to tip and the plaintiff saw that an emergency had arisen, that he was negligent in leaving the place where he was at work and trying to ascertain what was the matter, or to seek a place of safety. The judgment is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event. All concurred. Judgme'nt reversed and new trial granted, with costs to appellant to abide event.