Robinson v. Consolidated Gas Co.

On the 29th of April, 1905, the plaintiff’s intestate, a plumber in the permanent employment of the defendant, was so injured through the fall of a scaffold that he died in a short time. This action was brought under the Code of Civil Procedure and the Employers’ Liability Act to recover the pecuniary damages sustained by his next of kin.

The accident occurred in a coal vault beneath the sidewalk of No. 1 Broadway in the city of New York. The structure' upon which the decedent was working when the accident happened was used by the defendant in its business, although it does not appear by whom it was erected, or to whom it belonged. In the pleadings, by the witnesses and by counsel, in their arguments it was called and treated as a scaffold. About a year before the occurrence in question it was used by the defendant, but after that its history does not appear, except that it remained in the same position in the vault until after the lapse of a year it was again used by the defendant. It was about nine or ten feet from the floor and had no support underneath. One end was suspended by two ropes, and the other rested on a wooden brace placed horizontally between two piers to relieve the lateral strain and thus to strengthen the building. The brace was not designed to sustain a vertical strain, and it was kept in place simply by wedges driven

Upon the trial the jury found for the plaintiff, and the judgment entered on the verdict was affirmed by the Appellate Division, one of the justices dissenting. The defendant appealed to this court, and through its counsel insisted that the judgment should be reversed on account of an error in the charge.

The trial judge, in instructing the jury, laid down the usual elementary propositions relating to negligence, contributory negligence and assumption of risks. He charged further as follows: “ Precisely how or why that scaffold fell is not told by any witness. There is no witness, as I recollect the testimony, who gives you any express facts to show why that scaffold fell, and, therefore, I instruct you under the maxim res ipsa loquitur, which means that things speak for themselves, that the scaffold must have fallen because there was something the matter with it.”

The defendant excepted and asked the court “ to leave to the jury the question as to whether there was negligence of any person in the service of the employer entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition, as a question of fact.” After.mak

In his dissenting opinion, no other being written, Mr. Justice Ingraham said : “ I. think it was error to refuse to charge the defendant’s ninth request. The evidence is nncontradicted that the deceased and his associate placed considerable strain upon this scaffold in trying to unscrew a pipe and that while thus straining the scaffold fell. There was no evidence but that the scaffold would have been perfectly safe if used in an ordinary way.”

We also are of opinion that the exceptions raised reversible error, because the doctrine of res ipsa loquitur was improperly applied. The res of that maxim, which is sometimes misused, is not simply an accident resulting in injury, but the accident and the surrounding circumstances, necessarily shown by proving how the accident occurred, or in other words the occurrence as it appears by proof of the accident. The doctrine does not permit a recovery without some proof of negligence, but it regulates the degree of proof required under certain circumstances. If proof of the occurrence shows that the accident was such as could not have happened without negligence according to the ordinary experience of mankind, the doctrine is applied even if the precise omission or act of negligence is not specified, and even when it does not appear whether the accident was owing to some act done or to some act not done. It is applied when the inference of negligence is required by the nature of the occurrence. Thus the apparent cause of the accident may be want of care in constructing or maintaining or operating a machine, and if the occurrence indicates that the accident could not have happened without negligence in one or more of these respects, it speaks for itself and establishes a prima faeie case for the jury to con

In the case before us the occurrence did not speak for itself, nor permit negligence as the only inference, for the fall of the scaffold may not have been caused by the weight of the men upon it, but by their weight only when augmented in its effect by excessive pressure applied by all the strength they could exert when pushing upward, although indirectly, against a stationary object. One of them, as it was shown, had unusual and the other, as it is presumed, had average strength, and the strain of the pressure may have much exceeded the strain of the weight. The jury, if permitted, might have found that this caused the accident. It was an explanation for them to consider, tending to show why the scaffold fell, but under the charge that it “must have fallen

Cüllen, Ch. J., Gray, Edward T. Bartlett, Werner, Willard Bartlett and Hiscock, JJ., concur.

Judgment reversed, etc.