#### Daniel Reck, an Infant, by Leon Reck, His Guardian ad Litem, Respondent, *v.*Uvalde Asphalt Company, Appellant.

First Department,

December 31, 1913.

Negligence—injury to boy by stepping into pail of hot cement in street — evidence insufficient to establish negligence of defendant.

Action to recover for personal injuries sustained by a boy who, while playing ball, stepped backward from the sidewalk into a pail of hot cement, which was being used by the defendant in repairing an asphalt pavement.

Evidence examined, and *held,*insufficient to establish the negligence of the defendant.

Dowling, J., dissented.

Appeal by the defendant, Uvalde Asphalt Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 7th day of March, 1913, affirming a judgment of the City Court of the City of Hew York in plaintiff’s favor, and also the order of said court denying defendant’s motion for a new trial, and also from the judgment of affirmance entered in the office of the clerk of the City Court of the City of Hew York on the 17th day of March, 1913, pursuant to said determination of the Appellate Term.

*Alfred W. Meldon,*for the appellant.

*Arnold Gross,*for the respondent.

Scott, J.:

Plaintiff, a young lad between eleven and twelve years of age, was painfully injured by stepping into a pail of very hot asphaltic cement. Defendant was engaged in repairing the asphalt pavement of the roadway of West One Hundred and Twelfth street, between Seventh and Eighth avenues in the city of Hew York. The repair work consisted of cutting out holes in the pavement and filling them with fresh asphalt. To insure a good union between the new asphalt and the old pavement the edge of the cut was washed with asphaltic cement which must be used very hot. This cement was kept in a pail of about the size of an ordinary water pail which was moved *737from place to place as required. There is some dispute as to whether the street was barred off by barriers at Seventh and Eighth avenues. It is not of importance whether it was or not because it is clearly shown that there were a number of men at work on the job, and there were also present the usual machines and apparatus used in asphalt paving, so that every one using the street had ample notice that repair work was going on. The plaintiff had been playing ball on the sidewalk with another boy. The ball was thrown to him too high to be readily caught. He ran backwards with his hands aloft in the effort to catch the ball. Still running backwards he stepped off the sidewalk onto the roadway and then into the pail of hot cement. There is a dispute as to how far the pail was from the curb, but this, as we view the case, is of little importance/ The negligence charged against the defendant is that it left the pail of hot cement on the roadway and unguarded at the times it was not actually in use in cementing the cuts in the asphalt.

We are of the opinion that to charge the defendant with negligence on this ground is wholly unreasonable. Of course if it had left a pail, full or empty, in a place where pedestrians could reasonably be expected to pass, it would probably be chargeable with negligence. But that was not this case. The pail of cement was an appliance necessary to be constantly, and at short intervals, used in the work of repairing. Of necessity it was of portable form so that it could be moved from place to place as required. It was perfectly visible to any one, and in fact plaintiff himself had observed it a short time before he was injured. The obvious fact that the street was in process of repair was ample notice that the implements of repair were in use. If this boy or any other person had deliberately walked or ran forwards and stepped into the pail it would have been an act of negligence against which the defendant was not bound to" guard. It was no more bound because the boy", unheeding, ran backwards. The defendant, as we think, was not bound to anticipate that any person, boy or man, would step off of the sidewalk onto the roadway in the middle of the block while that roadway was in possession of a *738road gang making repairs. It was not such an accident as a reasonable man ought to have anticipated under the circumstances. Therefore, it was not negligence to fail to guard against it. In our opinion the finding that the defendant was guilty of negligence was against the evidence.

It follows that the determination of the Appellate Term and the judgment and order of the City Court must be reversed and a new trial granted, with costs to the appellant in all courts to abide the event.

Ingraham, P. J., Clarke and Hotchkiss, JJ., concurred; Dowling, J., dissented.

„ Determination reversed and judgment and order of City Court reversed and new trial granted, with costs to appellant in all courts to abide event. Order to be settled on notice.