This is not the usual application for a new trial upon the ground of newly-discovered evidence, where the moving party has met an adverse verdict. Here the jury found for the plaintiff and the judgment was reversed in this court and the complaint dismissed upon the ground that the evidence was insufficient as a matter of law to sustain the verdict.
The vital fact in the newly-discovered evidence is that the craneman had knowledge that plaintiff’s intestate was at work *66upon the girders and likely to be injured by the movement of the crane, as was done. I think the evidence upon the trial already had was sufficient to warrant the jury in so finding. If all the evidence on such trial does not make out a case of actionable negligence, the new evidence would not, as it seems to me, supply the deficiency. My own view is that the evidence upon the trial made out a case of actionable neglience against the defendant in operating the crane without warning the telephone employees at work upon these girders; the craneman knew, or should have been told by defendant of their presence and precaution taken against injuring them by operating the crane where they were at work. These workmen were more than bare licensees. They were invited by defendant and doing work in which it was beneficially interested.
Order reversed and motion denied, with costs.