
    Henry G. Volkmar, App’lt, v. The Manhattan Railway Co., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 1, 1892.)
    
    1. Negligence—Elevated railroad—Evidence.
    Proof that a bolt in defendant’s elevated railroad was broken and that in consequence an iron plate or clip fell upon plaintiff, raises a presumption of negligence on the part of the railroad.
    3. Same.
    This presumption is not overthrown by evidence by defendant’s track-walker that it was his duty to examine carefully the structure through the day and that on the day of the injury he was engaged in following out his. instructions and performed them to the best of his ability, so as to take the case from the jury. The credibility of the witness was a question for the jury.
    (Follett, Ch. J., Brown and Parker, JJ., dissent.)
    Appeal from a judgment of the general term of the superior court of the city of Hew York, affirming a judgment entered, upon a verdict directed by the court
    
      E. R. Leavitt, for app’lt; Brainard Tolles, for resp’t.
    
      
       Reversing 31 St. Rep., 172.
    
   Haight, J.

—This action was brought to recover damages for a personal injury.

On the 24th of June, 1885, the plaintiff was driving along-Sixth avenue in the city of Hew York in a wagon, going uptown, under the defendant’s elevated railroad structure. When near Thirty-ninth street an iron plate or clip with a 'part of a broken" bolt fell from the structure striking him upon the shoulder, causing the injury for which this action was brought

It appears that the bolt was about fourteen inches long; that it passed through the guard rail of the defendant’s road, the stringer upon which it rested and an iron plate or clip underneath, which was held in place by a nut upon the end of the bolt that the bolt was broken about two inches from the nut

These facts having been shown the plaintiff rested. Thereupon the defendant introduced evidence showing a proper construction of its elevated railway, and then called Samuel S.. Boach as a witness, who testified that he was the defendant’s track walker and inspector at the place where the injury was received by the plaintiff; that it was his duty to move carefully over the track during the day time to examine carefully all the rails, switches, signals, bolts and fastenings of all kinds and to ¡keep them tight; that in June, 1885, he was engaged in following out his instructions, and that he performed them to the best of his ability.

The defendant’s counsel then moved the court to direct a verdict for the defendant, which motion was granted.

The plaintiff asked permission to go to the jury upon the question of the defendant’s negligence upon the ground that the evidence showed that the presumption arose that the defendant was negligent in view of the fact that the iron plate fell from its structure upon the plaintiff. This request was denied and an exception was taken by the,plaintiff to such denial and to the direction of a verdict in favor of the defendant

No question is made but that the defendant’s elevated railroad was properly constructed. It is claimed, however, that it was negligently suffered to get out of repair, and that because of such negligence the plaintiff suffered the injury complained of.

It was the duty of the defendant to exercise ordinary care for the purpose of keeping its structure in proper repair so as to prevent injury to persons passing over or underneath it.

The evidence showed that the bolt was broken and that in consequence the iron plate or clip fell upon the plaintiff. The structure was consequently out of repair, and under the circumstances I think the presumption of negligence follows.

It has been held that where a building adjoining a street falls nto the street, in the absence of explanatory circumstances, negligence will be presumed, and the burden is placed upon the owner of showing the use óf ordinary care; that where a plaintiff was passing on a highway under a railroad bridge when a brick fell from one of the pilasters upon which an iron girder of the bridge rested, striking him upon the shoulder causing injury, negligence would be presumed; that where a barrel rolled out of the window of a warehouse onto a street injuring a person passing, negligence would be presumed; that where a person while walking along the street in front of a building was struck by a falling chisel the presumption of negligence is sufficient to call íor an explanation; that where plaintiff was injured while walking on the sidewalk of the street immediately under the defendant’s railroad by being struck with a heavy piece of metal which fell from one of defendant’s cars passing above, that from the nature of the accident negligence might be inferred, etc. Mullen v. St. John, 57 N.Y., 567; Kearney v. London R. R. Co., L. R., 5 Q. B., 411; S. C., 6 id., 759; Byrne v. Boadle, 2 Hurl. & Colt., 722; Cahalin v. Cochran, 1 St. Rep., 583; Goll v. Manhattan Ry. Co., 24 id., 24; affirmed, 125 N.Y., 714; 35 St. Rep., 993; Payne v. Troy & Boston R. R. Co., 83 N.Y., 572.

The learned general term in its opinion admits this proposition and concedes that the fall of the plate or clip in the absence of an explanation raises a presumption of negligence. That court however reached the conclusion that the presumption was overthrown by the evidence produced on behalf of the defendant. As we have seen, that evidence was given by the witness Roach. It was his duty as he testified to examine carefully all rails, switches, signals, bolts and fastenings of all kinds and to keep them tight. He further states that in June, 1885, he was engaged in following out his instructions and performed them to the best of his ability. In no place does he testify that he ever examined the bolt and clip which fell upon the plaintiff. He does not tell us how often he passed over the track or to what extent he examined the bolts and fastenings. He only give's us his own conclusion that he performed his duty to the best of his ability. It does not appear to us that this was sufficient to remove the presumption which necessarily follows from the established fact that the bolt was broken, and in that particular the structure was out of repair and dangerous.

But even if this evidence was sufficient to remove the presumption, as held by the general term, the credibility of the witness would still be involved and be a question for the jury. This witness was the defendant's track walker. It was his duty to examine the bolt which was broken. If there was any negligence for which the defendant was chargeable, it was that of this witness. He was therefore a person interested, and possibly actuated by a motive to shield himself from blame. Dean v. Van Nostrand, 23 W. Dig., 97; Elwood v. The W. U. Tel. Co., 45 N. Y., 549-554.

It is claimed that the plaintiff neglected to produce upon the trial the broken bolt. His counsel said it was lost He had established aprima facie case when he rested. The burden wasl then on the defendant. The upper portion of the broken bolt* was left in the structure in the possession of the defendant, which could have produced it had it so desired.

The plaintiff should have been permitted to submit to the jury the question of the defendant’s negligence.

The judgment should consequently be reversed and a new trial granted, with costs to abide the event.

All concur, except Follett, Ch: J., Brown and Parker, JJ., dissenting.  