
    Annie Conlin, as Adm’rx, Pl’ff, v. John C. Rodgers et al., Def’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 1, 1891.)
    
    Negligence—Evidence.
    Plaintiff’s intestate while in defendants’ service was ascending a shaft through which he went to and from his work in a tunnel. The cage had iron guard rails, a top and middle rail, with two uprights. The middle rail in the rear had been out for over three weeks, leaving a space four feet high. He had been going up and down in the cage for several months. He was alone in the cage and fell from it and was killed. No one saw him leave the cage, or testified how he came to fall, nor was it shown that he fell through the space left by the absent rail. Held, that it was not error to dismiss the complaint at the close of plaintiff's case.
    Motion for new trial, on exceptions heard at general term. Action for damages from the death of plaintiff’s intestate, alleged have been caused by the defendants’ negligence. On the conclusion of plaintiff’s case, the complaint was dismissed “on the ground that the plaintiff has not proven facts sufficient to constitute a cause of action.’
    Plaintiff’s counsel duly excepted.
    At the time of the accident the intestate was in defendants’ service, and was ascending a shaft though which he went to and from his work in a tunnel. He was alone in the cage. The cage had iron guard-rails, a top and middle rail, with two uprights. In the rear of the cage the middle rail was out, leaving a space of about four feet in height. This rail had been out for three weeks or longer. Before the defendants took the work from Brunten & Go., former contractors, there were no protection rails on the cages. Plaintiff’s witness testified: “ I was hoisting him when he fell off. I saw him go right off the cage. * * * I didn’t see him, and didn’t see what occasioned his fall. I didn’t know who had been in the case until I saw him between me and the shutter. * * * I saw the shadow going right off the cage * * * I let Conlin down that night. The next I saw him he came up dead. I saw him fall down the shaft. * * * The guard rails would come up to about his elbow. He had been going up and down the shaft for three months.
    
      John M. Coman, for app’lt; Nathaniel Smith, for resp’ts.
   Pryor, J.

—Upon this state of fact the question is, Was it error to dismiss the complaint? Or, to present the point in another form, was it the legal duty of the court to submit the case to the jury?

The rule is familiar and fundamental that, to authorize a recovery in such an action as the present, the plaintiff must prove that the defendants’ negligence was the cause of his injury. But, before this issue can be referred to the jury, the court must determine a preliminary question, namely: whether there be sufficient evidence to warrant the inference that the defendants’ neg-"* ligence was the cause of the injury. If there be such evidence the case must go to the jury, and it would be error to withhold it from them. If there be not such evidence, the case must be withdrawn from the jury, and it would be error to submit it to them. •

“ If the evidence would not authorize the jury to find a verdict for the plaintiff, or, if the court would set it aside if so found, as contrary to evidence, in such case it is the duty of the court to nonsuit."’ Willard J., in People v. Cook, 8 N. Y., 67, 74.

“ The judge has -a certain duty to'discharge, and jurors have another and a different duty. The judge has to say whether any facts have been established by evidence, from which negligence may reasonably be inferred; the jurors have to say whether, from those facts, negligence ought to he inferred.” Lord Cairns, in Met. R. R. Co. v. Jackson, 3 App. Ca., 193, 197 ; Lord Blackburn, p. 207.

“ Nor are judges any longer required to submit a question'to a jury, merely because some evidence has been introduced by the-party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what is called a scintilla of evidence in support of a case, thé judge was bound to leave it to the jury; but recent decisions of high authority have established the mo,re reasonable rule that, in every case, before the evidence is left to the jury, thre is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it.” Miller J., in Improvement Co. v. Munson, 14 Wall., 442, 448 ; Commissioners v. Clark, 94 U. S., 278, 284.

“ It is not enough to authorize the submission of a question as one of fact to the jury, that there is some evidence. A scintilla of evidence, or a mere surmise, that there may have been negli-' gence on the part of the defendant, would not justify the judge in leaving the case to. the jury.” Ruger, Ch. J., in Dwight v. Ins. Co., 103 N. Y., 341, 359 ; 3 N. Y. State Rep., 115

A refusal to nonsuit, in a case where a nonsuit would be proper, is error requiring a reversal. Wendell v. R. R. Co., 91 N. Y., 420, 429 ; Lomer v. Meeker, 25 id., 361.

We are of opinion that, from these principles, the dismissal of the complaint was a necessary corollary.

Assuming the negligence of the defendants, as charged in the complaint, the burden was still upon the plaintiff to prove that the negligence was the cause of the injury to her intestate; in other words, that the fall'of the intestate was due, as alleged, to “the uns'afeness, defectiveness and insecurity of said car or cage.” But the manner arid occasion of his leaving the cage are not apparent on the evidence. No witness saw his exit from the cage; no witness testifies how he came to fall from the cage; no witness says he fell through the space left by the absence of the rail.» It is evident enough that he might have fallen from the cage otherwise than through that space; thus, he might as well have fallen over the top rail as have slipped under it. Nothing in the case points to the latter, rather to the former alternative. Had the jury found that the intestate fell through the interval left by the removal of the rail, the finding would have been, not a legitimate inference from the circumstances, but a surmise or conjecture of a fact utterly without evidence. But “ the law demands proof, and not mere surmises.” Bond v. Smith, 113 N. Y., 378, 385 ; 22 N. Y. State Rep., 666 ; Riordan v. S. S. Co., 36 N. Y. State Rep., 476. u These are mere conjectures, without any basis in the evidence to support them.” Reynolds v. R. R. Co., 58 N. Y., 248, 252.

“ It was for the plaintiff to show how the accident occurred, and to prove negligence of the defendants in respect to some matter that caused it." Dobbins v. Brown, 119 N. Y., 188 ; 28 N. Y. State Rep., 666. If the evidence be equivocal, and point equally to another fact and the fact in controversy, the proof is insufficient to establish the latter. Cordell v. R. R. Co., 75 N. Y., 330. “When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale.” Erle, C. J., Cotton v. Wood, 8 C. B., N. S., 568.

“ The burden of proof is on him who complains of negligence. He must not only show that he suffered harm in such a manner that it might be caused by the defendant’s negligence; he must show that it was so earned.” Pollock on Torts, 360 marg.; Hayes v. R. R. Co., 97 N. Y., 259 ; Baulec v. R. R. Co., 59 id., 357 ; Searles v. R. R. Co., 101 id., 662 ; Ryan v. R. R. Co., 121 id., 126, 135 ; 30 N. Y. State Rep., 624, Taylor v. Yonkers, 105 N. Y., 203, 209 ; 7 N. Y. State Rep., 332 ; Kaveny v. Troy, 108 N. Y., 571, 577 ; 14 N. Y. State Rep., 18.

If the plaintiff failed to furnish sufficient evidence of the fact that the defendants’ negligence caused the injury to her intestate, her case is still more defective in the other essential particular, namely, proof that no negligence of his own contributed to his injury. “It belongs to the definition of the cause of an action that the injury must have been occasioned solely by the negligence of the defendant; and either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find affirmatively that the person injured was free from fault that contributed to the accident, or the action is not maintained. If this element is wanting in the case, the court may nonsuit or set aside a verdict for the plaintiff. Reynolds v. R. R. Co., 58 N. Y., 248, 250.

Of direct evidence of the absence of contributory negligence the plaintiff’s case is totally destitute; and not a single circumstance is shown that suggests a presumption of the fact Whatever may have been the rule in former times, it is not now the law that the instinct of self-preservation authorizes an inference of due care to avoid an impending peril. “ The presumption that every person will take. care of himself from regard to his own life and safety cannot take the place of proof.” Cordell v. R. R. Co., 75 N. Y., 330 ; Riordan v. S. S. Co., 36 N. Y. State Rep., 476, 478 (court of appeals, March, 1891). Assuming that plaintiff’s intestate fell through the interval left by the removal of the rail, it is still not apparent but that he negligently so fell. Formerly the cage had no guards, and the missing rail had been out for three weeks or a month; yet it is not shown that any one had before fallen from the cage, a fact affording demonstrative proof that a fall from the cage was not the necessary consequence of the absence of the rail. To infer, therefore, that the intestate did not fall through his own negligence would be a wholly gratuitous assumption. Quite decisive of the proposition are Bond v. Smith, 113 N. Y., 378, 22 N. Y. State Rep., 666 ; Hoag v. R. R. Co., 111 N. Y., 199 ; 19 N. Y. State Rep., 80 ; Cordell v. R. R. Co., 75 id., 330 ; Reynolds v. R. R. Co., 58 id., 248 ; Riordan v. S. S. Co., 36 N. Y. State Rep., 476.

“ It is not enough to prove facts from which either the conclusion of the presence or absence of negligence may with equal fairness be drawn; but the burden is upon the plaintiff to satisfy the jury that there was no contributory negligence on the part of the deceased.” Hart v. Bridge Co., 84 N. Y., 57 ; Hale v. Smith, 78 id., 480 ; Muhr v. Mayor, 15 Daly, 12, 16 N. Y State Rep., 668; Tolman v R R Co., 98 N. Y., 198.

It results, that the exceptions are overruled and motion for a new trial denied, and judgment directed for the defendants.

Daly, Ch. J., and Bischoff, J., concur.  