McIlease v. James F. Meehan Co.

125 N.Y.S. 546

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 11, 1910
• Status: Published

Opinion

BIJUR, J.

Plaintiff testified that while working as a laborer for the defendant he was directed to hoist a bucket of mortar by means of a rope and pulley hung in an areaway. As he considered the place dangerous, he was told by a representative of the defendant to stand inside and stick his head out of the window, and that there would be no danger in that case. The plaintiff testifies that some mortar struck him in the eye, causing him to be blind in one eye.

On a previous appeal to this court, it was held that no negligence “could he predicated on the ground that the defendant did not furnish a safe place to work or did not furnish proper appliances.” Plaintiff now contends that defendant’s assurance that he was free from danger relieves him from any charge of contributory negligence, and that it cannot be argued that he assumed any risk. Even so, there is no evidence in the case as to how the mortar fell, as ho whether it fell from his bucket or from elsewhere, or anything on which to predicate negligence on the part of the defendant.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.