Mulligan v. Crimmins — 58 N.Y. St. Rep. 737

Majority

p. 737

Michael Mulligan, App’lt, v. John D. Crimmins, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 12, 1894.)

Headnote

Master and servant—Negligence.

The mere fact of accident does not raise the presumption of negligence, where a reasonable examination of the appliances used would not have disclosed any danger.

Nonsuit was ordered at circuit, and plaintiff’s exceptions were ordered to be heard at general term in the first instance.

Henry A. Monfort, for pl’ff; Ohas. G. Nadal, for deft.

There are cases where the accident raises the presumption of negligence, but we do not think the present such a one. We are not able to say that a spicula would not be dislodged from a chisel by the blow of a heavy sledge when the chisel was in good order. There was no proof that the condition of the chisel, before the blow was struck, was a dangerous

p. 738

still less, that a reasonable examination would have disclosed danger. We are therefore of opinion that plaintiff failed to prove negligence on the part of defendant. Judgment for defendant.