Angelo Ciccarelli, Appellant, v. Naughton Company & Arthur McMullen, Respondent

Angelo Ciccarelli, Appellant, v. Naughton Company & Arthur McMullen, Respondent. Second Department, December 30, 1909. Master and servant—injury from fall of derrick—inspection — safe place to work. Where an injury to a servant from the fall of a derrick boom appears to have been due to the failure of a ratchet dog to perform its function, and it appears that the dog and all the appliances of the derrick were inspected before the work began; that after the work had proceeded for an hour and after the happening of the accident no defect in the appliances was discovered, and that the place where the plaintiff was working was as safe as the nature of the work would permit, the only-proof of negligence being the fact that .the boom fell, a nonsuit is proper. Appeal by the plaintiff, Angelo Ciccarelli, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the comity of Queens on the 30th day of January, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Queens County -Trial Term. Antonio Ferme, for the appellant. John It. Halsey [Adrian T. Fieman with him oh the brief], for the respondent. _ , . [MAJORITY — Woodward, J.:] Woodward, J.: We have to do with a judgment of nonsuit, and it is not to be doubted that the plaintiff is entitled to the most favorable inferences from his evidence, but the trouble is that the evidence does not warrant the submission of the case to the jury. This is a common-law action for personal injuries, the plaintiff having been injured by the fall of a boom of a derrick used in excavating for ^ the Pennsylvania railroad tunnel in Long Island City. The accident appears to have been due to the failure of a ratchet dog to perform its function, but the undisputed evidence is that the ratchet dog and all of the appliances of the derrick were inspected before the work began, and that after the work had proceeded for an hour and after the happening of the accident, no defect in the appliances was discovered. The place where the plaintiff was at work appears to have been as safe as the nature of the work would permit ; no suggestion is made that it was not properly lighted or that, the defendant had neglected any of the usual precautions. Indeed, except for the fact that the plaintiff was injured by the fall of the boom, no evidence is produced to show negligence on the part of the defendant of any duty owed to the plaintiff. The judgment appealed from should be affirmed, with costs. Present—Hirschberg, P. J., Woodward, Jenks, Thomas and Miller, JJ. Judgment unanimously affirmed, with costs.