Bitolio v. Bradley Contracting Co. — 222 N.Y. 553

Majority

p. 553

Ernesto Bitolio, Respondent, v. Bradley Contracting Company, Appellant.

Headnote

Bitolio v. Bradley Contracting Co., 166 App. Dry. 836, affirmed.

(Argued November 20, 1917;

decided December 4, 1917.)

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 26, 1915, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action under the Employers’ Liability Act to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant, his employer. The plaintiff was working with a “ muck

p. 554

gang ” in removing material blasted by drillers from the head of a tunnel undergoing construction at Lexington avenue and Fifty-sixth street, New York. While assisting in lifting stones from the floor of the tunnel' into a box resting on a car, which stones had been blasted the previous day, he was struck by rocks giving way and falling from the westerly side of the tunnel, receiving the injuries complained of. The trial court dismissed the complaint on thé ground of failure of proof of negligence on the part of defendant.

Frederick L. C. Keating and Israel V. Werbin for appellant.

Rosario Maggio for respondent.

Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Hiscock, Ch. J., Chase, Cuddeback, Hogan, Pound and Andrews, JJ. Not sitting: McLaughlin, J.