78 N.Y.S. 93 | N.Y. App. Div. | 1902
This case has been before this court on three occasions prior to the present; twice on appeals from judgments in favor of the plaintiff (6 App. Div. 33, 39 N. Y. Supp. 454; 22 App. Div. 466, 48 N. Y. Supp. 74), and once upon an appeal from an order permitting the plaintiff to amend his complaint (41 App. Div. 631, 59 N. Y. Supp. 111). This last appeal modified the order permitting the amendment of the complaint upon terms, which have not been complied with, and the case is thus presented upon the original pleadings. This court has twice held that, under the pleadings as they now stand, the plaintiff had failed to show conditions which would charge the defendant with negligence, and a careful examination of the record now before us fails to disclose evidence sufficient to support the theory of the plaintiff. If the evidence disclosed that the plaintiff, while engaged in the work of removing a cargo of jute from the hold of a vessel, was forcibly placed in a position of known danger by the defendant, there would be some ground for holding that the defendant was chargeable with the results which followed, but, so far as the evidence discloses, there was no more reason to expect a bale of jute to fall upon the plaintiff in the one position than in the other. Several men, experienced and capable
The judgment appealed from should be affirmed, with costs. All concur.