(dissenting.) On the 25th of January, 1884, plaintiff’s intestate was employed by an employé of defendant to assist in the unloading of coal belonging to defendant from a canal-boat lying at a dock in the North river. The tackle used, including the hoisting power furnished by a steam-engine, belonged to defendant. The work that said intestate undertook to perform was to “tend guy-rope,”—that is, by means of a rope that was part of the tackle to steer the buckets of coal as they were raised or lowered, and prevent them from striking against the boat and the dock in transit. Plaintiff’s proof shows that, after the intestate had been so engaged for about 12 minutes, by some unexplained means said guy-rope caught said intestate’s leg, and, taking two or three turns around it, carried him up, head downward, with a rising bucket, from 10 to 15 feet above the deck. He hung suspended for a short period, being unable to slide down the rope because it was wound round his leg. It appears that he called to the person in charge of the engine to lower him slowly, and, further, that it would have been possible to let him down so gradually that no injury would have resulted. But the person at the time in charge of the engine was not the regular engineer, but a boy about 16 years of age, whom the engineer had deputed to take his place. It is alleged that said boy was incompetent, and that he moreover became frightened, and, instead of lowering slowly, adjusted the engine so that said intestate fell with the bucket into the hold of the boat, sustaining injuries whereof he died.
The theory upon which plaintiff claims to recover is that defendant is chargeable with notice of the fact that the engineer was in the habit of allowing this boy to take his place, and that therefore it knowingly suffered an incompetent person to operate dangerous machinery, and is liable for the consequences. But it is unnecessary for us to discuss this question, for the reason that, if all that plaintiff contends for were allowed, the case is fatally defective, because there is nothing that shows, or tends to show, the absence of contributory negligence. On the contrary, such facts as do appear raise a strong presumption that the accident could not have happened unless the intestate *531had been negligent. Ordinarily, in an action brought by the representatives of a deceased person, who came to his death through such a casualty, the court would incline to be as indulgent as possible in the matter of affirmative proof of this negative. The law does require some evidence that the injured man was not negligent. But where his lips are closed by death, and no other person is acquainted with every minute occurrence at the time, courts will lean towards accepting slight circumstances tending to show absence of contributory negligence as sufficient to make out a prima facie case. But no such favorable presumptions can be entertained in the ease at bar. The deceased had sole charge of the guy-rope. No other person interfered with him in the discharge of his duty. To tend said rope was, moreover, his only duty. He was to give his undivided attention to its management, and, as there was nobody with whom he could divide the responsibility, if anything went wrong in connection with it, the only possible inference to be drawn is that it was through his own negligent performance of his work that the rope became twined about his leg.
It is not shown that the bucket was being raised at an unusual or negligent rate of speed at the time of the mishap. Plaintiff relies solely on the fact that it was improperly and carelessly lowered, and of this there can be little doubt. If it appeared affirmatively that the bucket was elevated by the boy at a very rapid speed, it might be argued that the intestate did not have time to free himself from the coils of rope. 1 have not overlooked the testimony of the witness Nelliker, viz.: “The boy raised and lowered the tub differently from what it is done by the engineer. Sometimes he ran it away up quick, and then down with a run, and stopped it short, and he would laugh at us jumping away.” This refers merely to an occasional practice. There is no testimony that the bucket had been raised too quickly on the day of the accident. The reason for the rapid lowering, then, was the boy’s sudden agitation at seeing the man suspended in air, and not any disposition to indulge in levity.
We arrive at our conclusion from a consideration of plaintiff’s own evidence. One necessary link in the chain of causation preceding the accident was the intestate’s negligently allowing himself to be caught by the guy-rope. Though we have not relied at all on the evidence of defendant’s witness Man gam, yet we would advert to it here as confirmatory and corroborative of the result reached. He testifies that he spoke with the intestate immediately after the accident, and that the latter said: “I got a little crack on the head. It don’t amount to much. It was my own fault; if I had been attending to my business it would not have happened.” It follows that the complaint should have been dismissed, and the judgment appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event.