Allen v. Banks

This case was tried upon the theory that' it was only necessary to prove the occurrence of the accident and its physical consequences to the plaintiff in order to establish a cause of action against the defendants, and it is singularly destitute of any evidence which will furnish a satisfactory explanation of the particular cause which produced the injury complained of.

In opposition to- the motion for a nonsuit, it was insisted by the plaintiff’s counsel that the accident itself, was of such a character as to raise a presumption of negligence which could only be overcome

The rule contended for has obtained frequent recognition from the courts of this State, but its application has been limited either to actions in which the relation of the parties was of such a character as to call for the exercise of the highest degree of care and skill upon the part of the defendant, in order to guard against accidents, as in the case of carriers of passengers (Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 562 ; Breen v. N. Y. C. & H. R. R. R. Co., 109 id. 297; Webster v. E. C. & No. R. R. Co., 85 Hun, 167 ), or where conditions were shown to exist which could not have been produced save by the operation of exceptional causes.

An apt illustration of the rule in its application to actions of the latter class is furnished by cases where travelers upon a street are injured by the dropping of articles from buildings or structures which abut thereon or extend thereover (Mullen v. St. John, 57 N. Y. 567 ; Hogan v. M. R. Co., 149 id. 23; Dohn v. Dawson, 90 Hun, 271 ), and this court very recently had occasion to apply it in a case which, while it cannot be strictly assigned to either of the classes specified, was, nevertheless, one in which it was made to appear that an employee was injured by the dropping of an iron hammer, the appliances of which had been in a defective condition, to the knowledge of the master, for a considerable period of time. And although the precise cause of its fall was not shown, we held that in these circumstances the jury might have found that it was attributable to defective machinery, .for which the master was legally responsible. (Dumes v. Sizer, 37 N. Y. Supp. 929 .)

We are not aware, however, that the rule has as yet been extended sufficiently to render it available to the plaintiff-in this action. The defendants were occupying the premises where the accident occurred for business purposes, and, while it may be assumed that the plaintiff went there upon an implied invitation to obtain the commodity which they dealt in, the relationship thus created imposed upon the defendants the duty of exercising' only such reasonable prudence and care as would not unreasonably and unnecessarily expose the plaintiff to danger during its continuance. (Hart v. Grennell, 122 N. Y. 371 ; Cosulich v. S. O. Co., Id. 118; Flynn v. C. R. R. Co.,

As has been already stated, this case is utterly barren of any such evidence. The plaintiff does not pretend 'to furnish any -explanation of the accident himself, and the only witness who did give evidence upon that subject simply stated that he saw a cake of ice hit the plaintiff, but where it came from or how it happened to strike him he could not •'conjecture. It does- appear, however, that the gig or cage used for lowering ice was at the opening near the top of the building at about the time the plaintiff was struck, and he swears that when in that position, “the ice would necessarily have to go into the gig when it passed through the aperture,” and that “ if the gig had been in ordinary condition it would not be possible for a chunk of ice to come down.” He also testified that he had been familiar with this device for lowering and loading ice for the past seven years, during which time he had never before known of -the occurrence of such an accident. This situation compelled the plaintiff’s counsel to take the position, as we understand it, that the ice must-necessarily have escaped from -the gig, and his request to go to the jury was ultimately narrowed down to the- one proposition, that the evidence would warrant an inference that its escape was due to -a defective gate.

"We think there are at least two complete and satisfactory answers to this contention ; in the first place there is not a scintilla of proofed any such defect, except the one isolated fact that a piece of ice somehow managed to hit the plaintiff. No one saw any defect in the operation of the gate; there is no evidence that any was discovered after the accident had occurred, and the plaintiff testified that in his seven years’ experience he never knew nor heard of a gate working improperly in a machine constructed upon this principle. But, assuming that the accident was the result of some defect in the gate, there is nothing in the case to indicate that such defect was one which the defendants negligently suffered to exist, or one that was ever brought to their notice. On the other hand, it does appear that, for five or six days.prior to -the happening of the accident, the plaintiff had been drawing ice from this ice house, which had

In any view which can properly be taken of the case, as disclosed by the record, we think the trial court was right in withholding it from the jury, and that the plaintiffs motion should, therefore, be • •denied.

All concurred.

Motion for a new trial denied, with costs, and judgment directed in favor of the defendants, with costs.