Steen

This appeal is from a judgment and order denying plaintiff’s motion for a new trial, in an action to recover damages sustained by plaintiff, by reason of the falling of a piece of gas-pipe from the hands of defendant’s employee while engaged in screwing it into another pipe. The cause was tried by a jury, which returned a verdict in favor of the defendant.

The court, at the request of the defendant, instructed the jury as follows: —

Plaintiff excepted on the ground that there was no *68 evidence of unavoidable accident. We think there was. The witness Robert Brown, on cross-examination, testified as follows:—

This evidence tends to prove that the injury sustained by the plaintiff was the result of unavoidable accident, and there is no evidence tending in any degree to prove that it was the result of negligence or carelessness. *69 Therefore the exception is based upon an untenable ground. And there is no other ground upon which it could be based.

Judgment and order affirmed.

De Haven, J., and McFarland, J., concurred.