This is an action for personal injuries. At the time of the accident the plaintiff was employed as a painter. He was lying, as was necessary for him at that time in the performance of his work, on top of an inclosure called a "cab" or "car" crected in connection with a crane which was carried on a movable bridge. When such car was moved its top passed only from two to five inches below the bottom of stationary trusses erected over such movable bridge. The bridge with said car and crane thereon was moved and the plaintiff was caught between the top of the car and the bottom of one of such trusses which was at right angles with the *Page 181 movement of said bridge and he received the injuries for which this action is brought.
The only allegations of negligence in the plaintiff's complaint are as follows: "That while plaintiff was so lying (on said car) the defendants did without warning carelessly and negligently start or cause to be started, the said movable track, the result was that said car was forced under one of said trusses while plaintiff was lying upon the roof. * * * The crane then stopped a moment and plaintiff assumed a standing position on the top of said car. Again without any warning to plaintiff whatever and before he had a chance to assume a position of safety, defendants carelessly and negligently caused the said movable track to be suddenly started throwing the plaintiff upon * * *."
The testimony upon the trial was conflicting and the question of the defendants' negligence as well as the question of plaintiff's contributory negligence were for the jury.
At the close of the principal charge by the court to the jury the defendants' counsel requested the court to charge "That if the jury believed the testimony of the plaintiff that Stevens told him they were going to move the crane to let the man get a picture the plaintiff cannot recover." The court declined so to charge and the defendants' counsel then said: "I take an exception and request your honor to charge that if the plaintiff knew the crane was to be moved he cannot recover." To this request the court said: "No, that is the converse of the other proposition. I shall not charge it." To such refusal to charge the defendants' counsel again took an exception.
Stevens was in the employ of and had charge of the work for the defendants and the crane was moved at his request. The important question at issue was the alleged negligence of the defendants as stated in the complaint. The defendants' contention on the trial was that the plaintiff was informed that the crane was about to be moved and that he expressly consented that it could be moved. The plaintiff did not claim that the defendants were negligent in the manner in which the *Page 182 crane was moved but in the fact that it was moved without warning to him. The request to charge last mentioned involved the principal defense to the action and the refusal of the court to charge as so requested was error which requires a reversal of this judgment.
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Judgment reversed, etc.