Joseph Rogers, Appellant, v. Frank S. Jones and Cyrus D. Jones, Respondents

Joseph Rogers, Appellant, v. Frank S. Jones and Cyrus D. Jones, Respondents. Second Department, November 16, 1906. Negligence — longshoreman injured while unloading truck — complaint against owner of truck dismissed. When a longshoreman is injured while assisting in unloading a truck by a portion of the load falling up'on him, caused by the untying of a supporting rope by the driver of the truck, and there is no evidence showing that the placing of the load or the use of a rope to bind it was improper or that the drive!" was negligent in the manner of untying the rope, a complaint against the owner of the truck is properly dismissed, for such an accident does.nót raise a presumption of negligence.1 AppBAL-by the plaintiff, Joseph Rogers, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of March,. 1905, upon the dismissal -of the complaint upon the merits by direction of the court after a trial at' the Kings County Trial Term, and also from an order entered in said clerk’s office on the 24,th day of March, 1905, denying the plaintiff’s motion for a new trial made upon the minutes. Samuel H. Randall, for the appellant. Joseph M. Gazzam, Jr. [Darwin J. Meserole with him on the brief], for the respondents. [MAJORITY — Woodward, J.:] Woodward, J.: The complaint was dismissed in this action at the close of plain, tiff’s evidence, on the grounds that the facts proved did not constitute a cause of action. The plaintiff appeals from.the judgment and from an order denying a new trial, and it will not- be questioned that upon this appeal he is entitled to the most favorable inferences to be drawn from the evidence. But with this concession we are persuaded that. there should be no reversal of the judgment. The most favorable view of the evidence for the plaintiff would be that the defendants sent a large truck load of goods to the dock of the Maine Steamship Company, in charge of a driver who is not suggested to have been incompetent; that the plaintiff was an experienced longshoreman, and that it was a part of his duties to assist in the unloading of such trucks; that the load was brought to a place indicated by the steamship company’s .servant and that defendants’ driver went to the front end of the truck for the purpose of untying one of the ropes used in binding on the tiers of boxes and barrels which made up the load; that the plaintiff was engaged in holding up the rear end of the load ¿or the purpose of permitting the removal of the rope, and that'when the same was unfastened the weight was too heavy for the plaintiff and the driver in control of the rope to hold up, and a portion of it fell off, injuring the plaintiff: There is. no suggestion that the load Was improperly placed, or that it was not proper to have it bound with ropes,- or that it -was not proper for the driver to untie the rope, preparatory to unloading the same, and the negligence of the defendants’ servant, if any, must be found in the particular manner in which he unfastened the rope, and as to this there is no evidence showing that he was in any wise negligent, or that he did anything other than he was expected to do in the intelligent and practical discharge of his duties. The entire situation was obvious to the plaintiff; the defendants’ servant did what he was expected to do, and there was no actionable negligence in the case, as shown by the very best view that can be placed upon the evidence. But beyond this, the plaintiff himself says in his initial statement, that he himself took off the first rope and that the things fell down upon him. He then says that he saw the driver go forward to untie the rope, and that when this was done the load fell on him# but in either event there was no negligence shown on the part of the defendants’ servant, and when the motion was made to 'dismiss the complaint there was tio evidence before the jury to show that any wrong had been done the plaintiff ; the mere happening of the accident, under the .circumstances disclosed by the évidence, did. not raise a presumption against the defendants. The judgment may be properly modified, by striking out the clause .“upon the merits,” and- as so modified the judgment and order appealed from should be affirmed, without costs. Present—Hirschberg P. J., Woodward, Rich and Miller, JJ. Judgment modified by striking out the words “ upon the merits,” and as. so modified judgment and order unanimously affirmed, without costs. «