
    Robert F. Dugan, Appellant, v. American Transfer Company, Respondent.
    Second Department,
    December 31, 1913.
    Master and servant — negligence — injury to truck driver by breaking of rope — evidence — res ipsa loquitur — discovery and inspection.
    Plaintiff, one of defendant’s truck drivers, while standing on the hind wheel of a truck with his feet on the hub drawing a rope across the load, fell by reason of the breaking of the rope. On the morning of the accident he noticed that the rope in question looked dark and weather-beaten, and went to defendant’s office and asked for a new rope, arid defendant’s secretary designated a man to get it, but they were unable to find one, and plaintiff returned to his truck without further request. No other evidence was given as to the cause of the rope’s breaking, except the plaintiff’s statement that it was “rotten,” which was a mere conclusion and on motion was stricken out.
    Held, that the complaint was properly dismissed.
    The doctrine of res ipsa loquitur did not apply to the mere breaking of the rope.
    
      It seems, that the plaintiff should have asked for a discovery and inspection of the broken rope, by which the condition and apparent causes of the break could have been established.
    
      Appeal by the plaintiff, Eobert P. Dugan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Eichmond on the 2 Ah day of November, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the Eichmond Trial Term.
    The action was one at common law for negligence.
    
      J. Edward Murphy, for the appellant.
    
      E. Clyde Sherwood [Robert B. Cumming and A’mos H. Stephens with him on the brief], for the respondent.
   Putnam, J.:

Plaintiff, one of defendant’s truck drivers, had loaded some wooden cases upon his truck near the Bush Terminal warehouses. They were piled two tiers high, so that the back of the load had to be secured by two ropes leading from the side stanchions across the projecting ends at the tail of the truck. Plaintiff was on the left hind wheel, standing astride the rim, with his feet on the hub. As he was drawing tight the upper rope (about half an inch in diameter), which came against two corners of the cases, it parted and plaintiff fell and was injured.

He had driven this truck the day before, when he had left it loaded near-defendant’s office in Manhattan. On the morning of this accident, as he unloosened the ropes to unload, he noticed that this smaller rope looked dark and weather beaten. He then went to defendant’s office and asked for a new rope from Mr. Schwab, defendant’s secretary, who told a man named Latta to get it. Latta and plaintiff went to the supply room near the office where such rope was usually kept, but found none. Latta said there was no rope there, whereupon plaintiff returned to his truck and drove it to Brooklyn, taking along the same ropes. It was while tautening up this discolored rope that it broke and let plaintiff fall.

No other evidence was given of the cause of the rope’s breaking. The witness Smith, who came to plaintiff’s aid, saw the broken rope but did not examine it. No witness was called who had seen the break or inspected the parted fibres. The court held that the doctrine of res ipsa loquitur did not apply and that, in the absence of evidence of some defect, plaintiff had not made out a cause of action. He, however, let plaintiff be recalled, but the witness merely repeated that the rope was dark in color, and added that when he took the rope off from the load that morning before the accident it was “ not in very good condition. The rope was rotten.” The statement that the rope was rotten was stricken out.

No further evidence being offered, the complaint was dismissed. Judgment of nonsuit followed.

The appellant insists that the rope, was defective and urges that the defect was proved by direct evidence; that admissions proved it and that the accident came under the doctrine of res ipsa loquitur.

When the case had been reopened and the plaintiff recalled to give, if he could, any further facts about the rope, his statement that it was “rotten” was but an opinion or conclusion. His counsel had not elicited any further particulars as to the rope’s appearance. As he gave no additional facts, this opinion must be regarded as based on the rope’s dark color with the fact of its breaking. But ropes in such use, exposed to weather, soon lose their color. The fact of breaking is not of itself evidence of decay or other defect. (Sweeney v. Rozell, 31 Misc. Rep. 640, 642.) In any view this conclusion was not competent and was rightly struck out. (Ferguson v. Hubbell, 97 N. Y. 507, 513, 514; Welle v. Celluloid Co., 186 id. 319.)

Mr. Schwab’s assent to plaintiff’s call for a new rope was not an admission of defects in the rope in question. That request was no notice of any defect. Plaintiff gave no reason for requiring more rope so that it might be supposed it was needed for any purpose on the truck. After plaintiff came from the storeroom he said nothing more to Mr. Schwab, but returned to his truck without further request and without alluding to any defect in the ropes on the truck.

So many elements enter into the inquiry as to how a rope comes to break that the fact of its parting, standing alone, does not give rise to the doctrine of res ipsa loquitur. (Duhme v. Hamburg-American Packet Co., 184 N. Y. 404, 410; Feingold v. Ocean Steamship Co., 61 Misc. Rep. 638.) The case of Pluckham v. American Bridge Co. (104 App. Div. 404) was where the rope was too light for its load. The fitness of this half-inch size of rope is not in question.

Plaintiff argues that the burden of proving defects in an article out of his possession is a hardship. But many causes of action have such difficulties which are to be overcome through discovery — a remedy since 1909 enlarged to permit “ discovery of any article or property.” (Code Civ. Proc. § 803, as amd. by Laws of 1909, chap. 173.) Plaintiff could have had a discovery and inspection of these broken rope ends, by which the condition of the rope fibres and the apparent causes of this break could have been brought out, and not left, as at present, to mere speculation.

I advise to affirm, with costs.

Present—Jenks, P. J., Thomas, Carr,-Rich and Putnam, JJ.

Judgment -unanimously affirmed, with costs.  