
    Alice Boyd, Respondent, v. S. Shopiro Company, Appellant.
    Fourth Department,
    November 15, 1911.
    Negligence—injury to pedestrian from window glass — wind storm — proof not showing negligence.
    There can be no recovery from the lessee of an apartment for injuries received by a pedestrian who was struck by broken glass which fell from a window of the apartment which was blown open during a wind storm of unusual violence, where there is no evidence that the window was out of repair, that any inspection by the defendant would have indicated how the accident could have been prevented, and there is no proof of negligence upon his part.
    Evidence in an action to recover for injuries so caused examined, and held, insufficient to establish negligence of the defendant.
    Spring, J., dissented.
    Appeal by the defendant, the S. Shopiro Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 17th day of May, 1910, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 15th day of October, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 6th day of January, 1910, to recover damages for injuries sustained by the plaintiff alleged to have been caused solely through the negligence of the defendant.
    
      Joseph R. McGowan and Benjamin Stolz, for the appellant.
    
      Frank T. Miller, for the respondent.
   McLennan, P. J.:

The facts, so far as material, are in a very narrow compass. The defendant was a sub-lessee of the fifth story or flat of a building in the city of Syracuse. The windows of such flat opening onto Salina street in such city were hung upon pivots in the center of such windows at the top and bottom. Such method of hanging windows was in common use and there is no suggestion that such method was not in all respects safe and of the most approved kind. The window in question was so. hung that when opened one-half of it, about twenty-nine inches, would extend into the room occupied by the defendant and the other half would extend outward. Upon the day in question, there being a very high wind in the city of Syracuse, blowing at a velocity at the time of the accident of between forty and fifty miles an hour, the window in question was blown in or out — it makes little difference which — the glass in' it was shattered and fell to the street below, striking- the plaintiff and causing the injuries for which she complains.

There is absolutely no evidence tending to show that the window or any of its parts were out of repair, and there is nothing to indicate that any inspection made by the defendant would have indicated to it how the accident which occurred could have been prevented. It is suggested that the evidence tends to show that a table was left in such close proximity to the window that when it' was blown over it would strike the table, thus shattering the glass and precipitating it to the street below. If that is the basis of plaintiff’s recovery, we have no hesitation in holding that any finding of negligence based upon such supposed situation was contrary to arid against the weight of the evidenóe. The evidence, which is of force and convincing, is to the effect that the table was so far removed from the window that by no possibility could such window strike such table and thus have been broken or shattered.

We think the evidence utterly fails to show any negligence on the part of the defendant which entitles the plaintiff to recover. There is not a scintilla of evidence to indicate that the window was not hung in the most approved fashion, or to indicate that it fell because it was out of repair and- thus made dangerous. It fell, as a matter of fact, because of the severe wind which prevailed at the time and which caused not only this window but many others in the locality to fall.

It would hardly seem necessary to cite authorities. This is an action for negligence, and it was incumbent upon the plaintiff to point out wherein the defendant had failed to exercise any duty which it owed to the plaintiff or any other person traveling upon the street at the time. This, as stated, the plaintiff has utterly failed to do. We fail to discover a scintilla of evidence which would charge the defendant with negligence in respect to the construction of such window or its use, eliminating, as we have said, some evidence given on behalf of the plaintiff to the effect that the defendant left a table in such close proximity to the window that when it opened it struck against such table and thus shattered the glass. As we have said, if such situation was made the basis of recoveiy, we think the verdict in that regard was contrary to and against the weight of the evidence. It is apparent that the window in question blew open and the glass was shattered because of an extraordinarily high wind which prevailed in the city of Syracuse at the time, which not only caused the breaking of this window, but others in the vicinity, and unroofed buildings and did much damage in the immediate vicinity and elsewhere. We think that under such circumstances the defendant was not liable because one of its windows blew in and the glass therein fell to the street under the circumstances stated.

We conclude that the facts do not establish negligence on the part of the defendant; that it conclusively appears that no duty was imposed upon the defendant which it failed to discharge in the premises.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event.

All concurred, Robson, J., in result only, except Spring, J., who dissented.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  