
    John Carey, Respondent, v. The Manhattan Railway Company, Appellant.
    .(Supreme Court, Appellate Term,
    April, 1906.)
    Negligence — Actions — Evidence — Presumption of negligence from happening of accident.
    Electricity — Actions for injuries.
    Negligence is not to be inferred from the mere happening of the accident in a ease where the plaintiff was injured by the discharge of electricity from wires carrying the charge for the operation of an elevated railway by the third rail, system when he was engaged at the time in drilling holes under the top girder of the track with the wires in close proximity to his tools, without paying attention to them, or taking any precautions against the danger of whose existence the circumstances would justify the inference of his knowledge; and when the break or defect in the wires which caused the discharge might have been made by his tools; and where it is shown that the wires were sufficiently insulated when put in, a comparatively short time before, and frequently and regularly inspected by a competent person, the last inspection having taken place but a few days before; and where there is no proof of when or how the abrasion of the insulation occurred.
    Appeal by the defendant from a judgment in favor of the plaintiff entered in the City Court of the city of Rew York, after a trial before the court and a jury, and also from an order denying defendant’s motion for a new trial
    Charles A. Gardiner (M. W. Gallaway, of counsel), for appellant. .
    Charles P. Rogers (J. Brownson Ker, of counsel), for respondent.
   Scott, J.

The plaintiff was in the employ of defendant as an iron worker on its elevated structure and, on the day of- the accident from which he suffered injuries, was one of a gang engaged in drilling holes directly under the top girder of the track. A foreman had previously marked the places at which, the holes were to be drilled. The plaintiff had been engaged in similar work in the immediate neighborhood for several days and, for about nine months, had been engaged in doing similar work on various parts of defendant’s structure, during which time the road had been operated electrically through what is known as the third rail system. At the point at which plaintiff was working at the time of the accident, certain wires, four or six in number, pass under the structure, attached thereto rather loosely, so that they are movable and serve to carry the electrical current to the third rail. In drilling the holes the plaintiff and his coworkers used a series of contrivances or tools known as a knee, a ratchet and a clamp. The knee, consisting of a piece of doubled angled iron weighing about twenty-nine pounds, is attached to the iron work in which the hole is to be drilled by the clamp, weighing about twenty-five pounds; and, between the iron and the knee, is inserted the ratchet, weighing about fourteen pounds, into which the drill is fixed. The gang was engaged in setting up the ratchet upon an upright girder preparatory to drilling a hole therein, plaintiff holding up the knee which was being clamped to the structure. Plaintiff and his companions observed the feed wires in close proximity to their tools, but paid no particular attention to them, and took no precaution against touching them with their tools while engaged in clamping the knee and the ratchet. Before this work was completed there was an explosion and blinding flash whereby plaintiff was seriously burned and injured. There can be no doubt that this explosion was caused by contact between one of the iron tools and one of the feed wires, .resulting from some break or defect. in the insulation of the wire. . Ro direct evidence of insufficient, imperfect, or defective insulation was offered, the plaintiff contenting himself with showing that the explosion could not have occurred unless there had been some break or defect in the insulation at the point of contact and at the moment of contact, and arguing therefrom that this proof, with proof of the explosion, warranted the jury in finding that the defendant had been negligent, either in failing to provide properly insulated wire in the first instance, or in failing to keep it properly insulated. after it had been installed. This seems to us to be an attempt unwarrantably to extend the doctrine of res ipsa loquitur, for it implies the drawing of an inference from the mere happening of the accident that the defect in the insulation, which concededly must have existed at the moment of the explosion, had existed previously for a sufficient time to impute notice to the defendant. The circumstances as disclosed by the evidence warrant no such inference. It was clearly shown that the insulation was originally quite sufficient for the use to which the wire was to be put; that it had been in place but a comparatively short time, and that it was frequently and regularly inspected by a competent and experienced employee of x the defendant, one of such inspections having taken place only a few days before the accident happened. It also appeared that it was quite possible, if indeed not probable, that the insulation might have been abraded by the acts of the plaintiff and his fellows in setting up their tools. In short, there was.an entire lack of proof that the insulation was imperfect at any moment before the accident happened; that the wire was improperly insulated when installed, or that the defendant had failed in its duty of frequent inspection. The jury were thus left to conjecture that, owing to some negligence not specified and not disclosed by the evidence, the defendant had failed in its duty toward plaintiff. The most that can be said upon the evidence as presented is that it leaves it unexplained when the insulation became , abraded or how the abrasion occurred. This was not sufficient to justify the submission of the cause to the jury.

Tbuax and Bischobb, JJ., concur.

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