
    (68 App. Div. 219.)
    NOLAN v. BROOKLYN HEIGHTS R. CO.
    (Supreme Court, Appellate Division, Second Department.
    January 17, 1902.)
    1. Master and Servant—Negligence—Res Ipsa Loquitur.
    The doctrine of res ipso loquitur is not confined to accidents where the injured party has no contractual relation with the party sought to be charged, but is applicable in suits for negligence by a servant against the master.
    8. Same—Evidence.
    Where a servant, wtiile under an elevated railroad structure maintained by his master, was injured by a block falling on him from such structure, but there was no evidence to show whether it was a part of the structure, merely lying on it, and the evidence showed that a train was passing over the road when the block fell, so that it might have fallen from the train, there was no evidence raising a presumption of negligence on the part of the master under the doctrine of res ipso loquitur.
    Appeal from trial term, Kings county.
    Action by Michael Nolan against the Brooklyn Heights Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Reversed.
    
      Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.
    I. R. Oeland, for appellant.
    Arthur H. Wills, for respondent.
   WILLARD BARTLETT, J.

The plaintiff, at the time he received the injury which gave rise to this action, was employed in the service of the defendant upon a sand car on the defendant’s surface railroad in the borough of Brooklyn. At that time the defendant leased and operated a steam elevated railroad known as the “Fulton Street Elevated Line,” and the sand car upon which the plaintiff was riding was running underneath the elevated structure. A block of wood about 18 inches long, 6 inches wide, and 4 inches thick fell from the elevated structure, and struck the plaintiff upon the head, inflicting injuries for which the jury awarded him damages in the sum of $750. In the charge the learned trial judge instructed the jury that the plaintiff was entitled to recover -only upon proof that the block of wood by which he was injured had been in some way connected with the elevated structure, and that it fell by reason of negligence of the company in not keeping the structure in order. The only fault found with this instruction by counsel for the appellant is that there was no evidence in the -case to warrant the jury in finding that the piece of wood which fell and injured the plaintiff had ever been a portion of the structure of the defendant’s elevated railroad, and I think that his assertion in this respect is sustained by the record. The doctrine of res ipso loquitur is invoked in support of the judgment, and would be applicable if there were proof tending to show that the block was a part of the elevated railroad, and had become detached therefrom, and fallen upon the plaintiff. That doctrine is not confined to accidents where the party injured has no contractual relation with the party sought to be charged. On the contrary, it has been applied in this and other states in negligence suits between servant and master. Green v. Banta, 48 N. Y. Super. Ct. 156, affirmed in 97 N. Y. 627. The case cited, and many others on the same subject, are reviewed by Judge Cullen in Griffen v. Manice, 166 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922, which contains the fullest and most satisfactory discussion of the rule of res ipso loquitur to be found in the law reports of this state; and it is there distinctly held that the application of the rule does not depend upon the relation of the parties. “Of course,” says Judge Cullen, “the relation of the parties may determine the fact to be proved, whether it be the want of the highest care or only want of ordinary care; and, doubtless, circumstantial evidence, like direct evidence, may be insufficient as a matter of law to establish the want of ordinary care, though sufficient to prove absence of the highest degree of diligence. But the question in every case is the same,—whether the circumstances surrounding the occurrence are such as to justify the jury in inferring the fact in issue.” The reason why the doctrine of res ipso loquitur is insufficient to uphold the verdict in the present case is that the mere fall of the block of wood from off the elevated structure overhead does not, alone and of itself, indicate whether it was brought about by any want of care for which the defendant, as master, can beheld liable to the plaintiff, as servant. In the absence of any information as to the previous location of the block,—whether as a component part of the elevated structure itself, or lying loose upon it, or in the hands of a fellow servant of the plaintiff at work on the tracks above him,—we .are unable to determine, or even to guess, whether there was any negligence for which the law imposes any liability upon the defendant. Indeed, the proof shows that a train was passing over the elevated line at the time when the stick of wood fell, and upon all the evidence there is just as much reason to suppose that it fell from the train as there is to suppose that it had become detached from the railroad itself.

In my opinion, the proof was insufficient to take the case to the jury, and the judgment should be reversed.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.  