(1) There -is a. presumption that the judgment of nonsuit was properly granted.
(2) There is no certificate in the appeal book that the case contains all the evidence introduced upon the trial. (Gorham Mfg. Co. v. Seale, 3 App. Div. 515.)
(3) There was no motion for a new trial on the minutes. The only exceptions reviewable are those taken to the refusal to submit the case to the jury and to the granting of the motion for a nonsuit.
It is quite apparent from the evidence that whatever defects or imperfections existed in the car or derrick were known by the plaintiff prior to the accident, and that he was fully apprised of the extent thereof, and it is quite obvious that he assumed the risk of remaining in the use of the plant in the condition in which he knew it to be.
(4) There was no evidence given tending directly to indicate that Teller was an incompetent servant, or that the defendant knew that he was incompetent, and, besides, the question as to his competency does not seem to have been agitated at the trial.
The foregoing suggestions lead to the conclusion that the judgment should be affirmed.
All concurred.
Judgment affirmed, with costs.