
    Rhoda N. Miller, Appellant, v. Samuel Steinfeld and Leo Steinfeld, as Copartners Doing Business under the Firm Name and Style of Steinfeld Brothers, Respondents.
    Third Department,
    September 13, 1916.
    Megligence—injury resulting from collapse of stepladder chair — liability of jobber or seller for failure to make proper inspection — liability of manufacturer — evidence — trade mark — res ipsa loquitur.
    In an action to recover for personal injuries resulting from the defendants’ alleged negligence in failing to make proper inspection of a certain stepladder chair, it appeared that the plaintiff’s daughter had pur. chased the ladder from a firm which had bought the same from the defendants; that the ladder bore the words “Trade Mark, Steinfeld.’i The plaintiff claimed that while standing upon the third step of the ladder she fell to the floor and was injured, and that her fall was caused by the drawing out of the nails and screws which held the hinges to the back portion of the ladder. The defendants claimed that the plaintiff’s fall was caused, and the hinges thereby disconnected, because she leaned too far out from the ladder, and they demonstrated this theory before the jury. At the close of the evidence the plaintiff was permitted to amend her complaint by adding the allegation that the defendants were jobbers and sellers of stepladders as well as manufacturers thereof, as theretofore alleged.
    
      Held, on all the evidence, that the court properly refused to charge that the defendants were the manufacturers of the ladder, and that a refusal to apply the rule of res ipsa loquitur was also proper.
    The burden of proving that the defendants were the manufacturers of the ladder was upon the plaintiff, and it was incumbent upon her to offer evidence tending to show such fact before she could claim that the presence of the trade mark was proof thereof.
    Mere proof that the accident happened and that plaintiff suffered injury was not of itself sufficient to render the doctrine of res ipsa loquitur applicable.
    
      It seems, that a person holding himself out to be' the manufacturer of an article is liable to a purchaser to the same extent as the actual manufacturer would be had the purchase been made from him.
    Appeal by the plaintiff, Rhoda N. Miller, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 5th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1915, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Leary & Fullerton [James A. Leary of counsel], for the appellant.
    Ivins, Wolff & Hoguet [Henry F. Wolff and Robert Louis Hoguet of counsel], for the respondents.
   Lyon, J.:

The plaintiff was seriously injured by falling from a stepladder. ' It was of a construction commonly known as a stepladder chair, and bore the words, “Trade Mark, Steinfeld.” Two pieces of wood joined together by a hinge at each end formed the seat, permitting the back portion of the chair to be turned over on the front portion, creating a form of stepladder in common use. The defendants were dealers in toys and furniture specialties on Broadway in the city of New York. The chair was undoubtedly one of a half dozen bought of the defendants by Bickley Brothers who conducted a house furnishing store at Glens Falls, hi. T. The chair was bought of Bickley Brothers by plaintiff’s daughter and sent by her as a present to the plaintiff at Ballston Spa.

The plaintiff testified that while standing upon the third step of the ladder about to engage in washing a window she fell to the floor and was injured. Following her fall the plaintiff claims that the ladder was found to have come in two by the drawing out of nails and of the screws which held the hinges to the back portion of the ladder. The plaintiff claimed that this caused the ladder to collapse. The defendants claimed that the plaintiff’s fall was caused, and the hinges thereby disconnected, by the plaintiff having leaned so far out from the ladder as to place the center of gravity outside the base line of the chair. In demonstration of their theory the defendants caused a man, in the presence of the jury, to mount the ladder and stand upon the third step with the hinges disconnected. Whether the plaintiff’s fall resulted from her having leaned too far out from the ladder, or from the collapsing of the ladder by reason of the insufficient attachment of the hinges, was fairly a question of fact for the jury. At the close of the evidence the plaintiff was allowed to amend her complaint by adding the allegation that the defendants were jobbers and sellers of stepladders as well as manufacturers thereof as theretofore alleged. At the close of the plaintiff’s evidence the defendants rested their case. Following the charge the jury rendered a verdict of no cause of action.

The plaintiff’s grievances as stated in the brief of her counsel are twofold: That the court erred in refusing to charge the jury that the defendants were the manufacturers of the ladder; and also erred in refusing to apply the rule of.res ipsa loquitur. At the conclusion of the charge, plaintiff’s counsel took an exception to the statement of the court that there was no proof in the case that the defendants were the manufacturers of the ladder. The plaintiff had alleged in her complaint upon information and belief that the defendants were the manufacturers. The answer verified by one of the defendants positively denied that this was so. A careful reading of the record discloses nothing supporting plaintiff’s allegation nor does the plaintiff’s brief point out any evidence whatever to that effect, except as the brief claims that the words “Trade Mark, Steinfeld,” upon the ladder indicated that the defendants were the manufacturers. The presence of the trade mark, however, was equally consistent with the conclusion that the defendants were mere jobbers or sellers of these chairs.

“A 'trade-mark’ is a mark used to indicate the maker, owner or seller of an article of merchandise, and includes, among other things, any name of a person * * * usually affixed to an article of merchandise to denote that the same was imported, manufactured, produced, sold * * * by him.” (Penal Law, § 2350.) “ In the strict sense of the term, a trade mark is applicable only to a vendible article upon which it is in some manner affixed or represented as a symbol to indicate the origin or ownership of the article on which it is placed.” (Koehler v. Sanders, 122 N. Y. 65, 72.) The definition generally adopted by the later decisions is that the term “trade mark” means “ a distinctive mark of authenticity; through which the products of particular manufacturers, or the vendible commodities of particular merchants may be distinguished from those of others. ” (Elgin National Watch Co. v. Illinois Watch Co., 179 U. S. 665, 673; Standard Paint Co. v. Trinidad Asphalt Co., 220 id. 446.)

The burden of proving that the defendants were the manufacturers of the ladder was upon the plaintiff. As the trade mark might indicate with equal force that the defendants were the manufacturers or the jobbers, or the sellers of the ladder, it was incumbent upon the plaintiff to offer evidence tending to show that the defendants were the manufacturers of the ladder before she could claim that the presence of the trade mark was proof to that effect. Unquestionably the ruling of the court that there was no proof in the case that the defendants were the manufacturers of the ladder was an important ruling as the liability of the manufacturer of a ladder is much greater than that of a jobber or seller. The manufacturer is presumably acquainted with the method of its manufacture. Undoubtedly a person holding himself out to be the manufacturer is liable to a purchaser to the same extent as the actual manufacturer wculd be had the purchase been made from him. (Willson v. Faxon, Williams & Faxon, 208 N. Y. 108; Junkermann v. Tilyou Realty Co., 213 id. 404.)

The fact that the bill for the half dozen chairs sold by the defendants to Bickley Brothers stated that the chairs were shipped to Bickley Brothers from Walton, N. Y., would not tend to indicate that the defendants were the manufacturers of the chairs. Plaintiff’s counsel were unquestionably familiar with the decision in MacPherson v. Buick Motor Co. (217 N. Y. 382) holding that the' manufacturer of an automobile was responsible for the finished product, and was not at liberty to put that product upon the market without subjecting the com" ponent parts to ordinary and simple tests, and doubtless they fully appreciated the importance of proving that the defendants were the manufacturers of the ladder, if such were the fact. Although plaintiff’s counsel were advised by the service of the verified answer several months before the case came to trial that the.defendants claimed that they were not the manufacturers of the ladder, and while it would seem to have been within their power to establish definitely whether or not the defendants were the manufacturers of the chair, yet they did not see fit to call any witness from either defendants’ place of business in New York city, or from Walton, to testify where or by whom the chair was manufactured. Nor did the plaintiff suggest any reason for the absence of such witnesses. We think the statement of the court that there was no proof in the case that the defendants were the manufacturers of the ladder was fully warranted.

As to the doctrine of res ipsa loquitur. The court at defendants’ request instructed the jury that the mere breaking of the ladder did not render the defendants liable, to which instruction the plaintiff excepted. We think the court committed no error in this respect. The plaintiff was bound to prove facts from which it might fairly be inferred that the defendants’ negligence was the proximate cause of the injury. Mere surmise or conjecture would not do. (Bruckel v. Milhau’s Son, 116 App. Div. 832, 835, citing S. & R. Neg. [5th ed.] § 57.) The ladder was plainly a cheap affair, made of chestnut, not painted, varnished or oiled. It was sold by defendants to Bickley Brothers at the rate of nine dollars per dozen, and by the latter to plaintiff’s daughter for one dollar and twenty-five cents. One of the defendants testified that they had dealt in the ladders for six years, had sold numbers of them, and never before knew of any parting or breaking of any of them. Concededly at the time of the accident the ladder was in the possession and under the sole control of the plaintiff, and perhaps being so negligently used by her as to be the sole cause of her fall and injury.

“ The causative force of the injury must be shown to be controlled by the defendant; it must also appear that there was no other equally efficient proximate cause. * * * The most frequent application of the doctrine, as stated, is to passenger cases because the passenger of necessity passively submits himself to be acted upon by forces exclusively under the carrier’s control. The derailment of a train by which the passenger is injured is generally considered a typical case of res ipsa.” (S. & R. Neg. [6th ed.] § 58b.) “This is the doctrine of res ipsa loquitur, and it is not applied unless the thing causing the accident is under the control of the defendant or his servants.” (Thomp. Neg. § 7635, citing Lennon v. Rawitzer, 57 Conn. 583.)

It appears probable from the evidence that the plaintiff did not know just how the accident happened. The fact that upon the trial of the action a man mounted the disconnected ladder and stood upon the third step would strongly indicate that the fall resulted from the plaintiff having leaned too far out from the ladder, and hence was brought about in part, at least by the plaintiff’s own negligence. As such may have been the fact, and the verdict indicates that the jury may have so found, the trial court had not the right under the circumstances to say that presumptively the fall resulted solely from the negligence of the defendants in failing to properly inspect the ladder. That, too, in face of the fact that there is no proof that the defendants did not use reasonable care in making inspection. Such an instruction would have been grossly improper had the accident happened solely by reason of the plaintiff’s negligence in leaning too far over the ladder. This the jury had the right to find from the evidence. ' Mere proof that the accident happened and plaintiff suffered injury was not of itself sufficient to render the doctrine of res ipsa loquitur applicable. The plaintiff was obliged first to show facts and circumstances establishing negligence upon the part of the defendants or from, which the inference of negligence might properly be drawn. (Marceau v. Rutland R. R. Co., 211 N. Y. 203, 206.) The negligence, if any existed upon the part of the defendants as jobbers or sellers of the ladder, was the failure to make proper inspection. There was no evidence that the defendants did not use reasonable care in having the ladder inspected by a- competent person before it left Walton. The alleged defects were not so obvious that their existence implied absence of inspection. The proof shows that the ladder was inspected by Bickley Brothers when received by them from defendants, and before being placed in stock, and that it was also inspected by plaintiff’s husband when it reached plaintiff’s home, and that neither inspection revealed any defect. Evidently the jury believed that the defects in the ladder, if they in fact existed, were not discoverable in the exercise of reasonable care of inspection, and that the fact that the defects were not discovered did not prove that reasonable inspection had not been made by the defendants. If reasonable inspection were in fact made by defendants and the alleged defect not discovered then there was no negligence upon the part of the defendants as jobbers or sellers and there was nothing upon which the doctrine of res ipsa loquitur could apply.

Furthermore a full trial of the issues was had at which all the witnesses were before the jury. The plaintiff makes no complaint of rulings as to the admission or exclusion of evidence. The charge was clear and comprehensive. The court submitted to the jury the questions as to whether the ladder was defective; if so, whether it was obviously defective; whether the defendants as jobbers or dealers failed under the circumstances to exercise reasonable care of inspection; and whether the plaintiff was chargeable with contributory negligence. The court instructed the jury that if they should conclude from the evidence that the defendants 'did not exercise reasonable care under the circumstances; that the defendants ought not to have passed this ladder, ought not to have sold it, or transmitted it to the retail dealer, then the defendants were negligent; and if the jury should find the plaintiff free from contributory negligence, the jury could find that the plaintiff was entitled to recover in the case. A jury of plaintiff’s own county found a verdict in favor of the defendants.

The judgment and order appealed from should be affirmed.

All concurred, Kellogg, P. J., and Howard, J., in result.

Judgment and order unanimously affirmed, with costs.  