Caroline Riceman, Executrix, etc., Respondent, v. H. O. Havemeyer et al., Appellants

Caroline Riceman, Executrix, etc., Respondent, v. H. O. Havemeyer et al., Appellants. (Argued. January 25, 1881; decided February 8,1881.) This action was brought to recover damages for alleged negligence causing the death of George M. Riceman, plaintiff’s testator. The facts appearing were substantially as follows; The deceased was, at the time of the accident causing his death, in the employ of defendants as assistant-engineer in their sugar refinery. In the basement of the refinery were two rows of tanks with a flagged passage-way two feet six inches wide between them. At one point there was a gutter across this passageway, a foot above it, with a block on either side to assist in getting over it. The deceased went through this passage-way to examine a pump which was out of repair, and in returning fell into a tank containing hot sugar syrup, which was uncovered, receiving injuries causing his death. Ho one saw the accident. The deceased had been in defendants’ employ for two days and had during that time been to and fro over this passage-way. He had been over it five times just before the accident; at that time a fellow-servant went over safely, just ahead of him. The way was well lighted. The deceased had been especially charged to be careful and not fall into the tank. Held, that plaintiff failed to show directly or inferentially that her testator was free from contributory negligence, and that a refusal to nonsuit was error. Theodore F. Jackson for appellants. Winchester Britton for respondent. [MAJORITY — Folger, Ch. J.,] Folger, Ch. J., reads for reversal and hew trial. • All concur. Judgment reversed.