
    Argued November 30, 1948;
    decided January 13, 1949.
    
      
      John W. MacDonald, Thomas J. P. Cawley and Horace E. Whiteside for appellants.
    I. The Appellate Division invaded the province of the jury in reversing the judgment of the trial court entered upon a jury’s verdict, upon the stated ground that there was no proof of a causal connection between the breaking of the rope ” and plaintiff’s injury and in dismissing the complaint upon the ground that “ the accident was not one within reasonable range of anticipation (Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Carr v. City of New York, 281 N. Y. 469; Maguire v. Barrett, 223 N. Y. 49.) II. The Appellate Division invaded the province of the jury in deciding as a matter of law that there was no liability proved against the defendant by the plaintiff in this action. (Palsgraf v. Long Island R. R. Co., 222 App. Div. 166, 248 N. Y. 339; Haefeli v. Woodrich Engineering Co., 255 N. Y. 442; Casper sen v. La Sala Bros., 253 N. Y., 491; Indermaur v. Barnes, [1866] L. R. 1 C. P. 274, L. R. 2 O. P. 311; Matter of Polemis & Furness, Withy & Co., [1921] 3 K. B. 560; Sullivan v. Central Hanover Bank & Trust Co., 294 N. Y. 497; Peck v. Weil, 231 App. Div. 670, 235 App. Div. 601, 259 N. Y. 540; Alpert v. Day, 241 App. Div. 604, 264 N. Y. 643; McGlone v. Angus, Inc., 248 N. Y. 197; O ’Neill v. City of Port Jervis, 253 N. Y. 423.) III. The Appellate Division erred in holding that plaintiff must show by direct evidence that the cause of his fall was the breaking of the rope. (Metropolitan Ry. Co. v. Jackson, 3 App. Cas. 193; Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Tortora v. State of New York, 269 N. Y. 167.)
    
      Matthew S. Gibson and Frederick L. Scofield for respondent.
    I. There can be no legal liability for an accident such as this, which, upon the admitted and undisputed facts, was so rare, unexpected, and unusual that no reasonable person could fairly say that defendant, in the exercise of reasonable care, should have anticipated its occurrence. (Sweeney v. Rosell, 31 Mise. 640; Dugan v. American Transfer Co., 160 App. Div. 11; Paul v. Consolidated Fireworks Co., 212 N. Y. 117; Cronin v. American Linen Co., 147 F. 755; Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306; Burns v. Old Sterling Iron & Mining Co., 188 N. Y. 175.) II. Plaintiff failed to establish a prima facie case sufficient to warrant submission to the jury of the question of whether the breaking of the alleged defective valve cord was what caused plaintiff to fall from his employer’s truck. (White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Scharff v. Jackson, 
      216 N. Y. 598; Wolf v. Kaufmann, 227 App. Div. 281; Bourcheix v. Willow Brook Dairy, Inc., 268 N. Y. 1; Buppert v. Brooklyn Heights B. B. Co., 154 90; Buback v. McCleary, Wallin & Crouse, 220 N. Y. 188; Slater v. Barnes, 241 N. Y. 284; Dillon v. Bockaway Beach Hosp., 284 N. Y. 176.) III. Plaintiff failed to establish a prima facie case sufficient to warrant submission to tbe jury of the question of whether plaintiff was free from contributory negligence. (Lyon v. Socony-Vacuum Oil Co., 268 App. Div. 788; Fillis v. Wahlig, 267 App. Div. 781; Owen v. Westchester Country Club, Inc., 264 App. Div. 796, 289 N. Y. 819; Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240; Deane v. City of Buffalo, 42 App. Div. 205; Fetch v. Allen, 98 Mass. 572.)
   Lewis, J.

The appellant’s intestate, a driver of an oil tank trailer truck, instituted this action during his lifetime to recover for personal injuries sustained by him when, during a tank-filling operation upon premises maintained by the defendant corporation, he fell to the ground from a catwalk on the oil truck he was operating.

At Trial Term a jury awarded a verdict to the plaintiff, whose death occurred eleven weeks after the trial. Although since the death of the plaintiff his widow has prosecuted the action as administratrix of his estate, it will be convenient to refer to the decedent as the plaintiff. At the Appellate Division the judgment entered at Trial Term was reversed on the law and the facts and the complaint was dismissed on the law. The opinion Per Curiam by the Appellate Division states the basis of its decision as follows: “ In our opinion there was no proof adduced which would serve to show a causal connection between the breaking of the rope and the fall of plaintiff’s intestate, particularly in the light of the undisputed fact that the rope was not provided as a means of support and that, at the time it broke, the plaintiff’s intestate was located squarely in the middle of the catwalk, kneeling on one knee and holding onto the hatch opening with his left hand while operating the valve by means of the rope with his right hand. We are also of opinion that the verdict was excessive, in the light of the fact that the proof shows that plaintiff’s intestate was suffering from nephritis and arteriosclerosis. The complaint should be dismissed, however, for the reason that the accident was not one within reasonable range of anticipation, in any event a new trial would he granted because of the excessiveness of the verdict.” (272 App. Div. 935-936.)

In those circumstances — the reversal was upon the law we are bound by the facts which the jury might have found.” (Hendrickson v. Hodkin, 276 N. Y. 252, 257.) Accordingly, the scope of our problem is narrowed to the inquiry: Is there evidence — direct or circumstantial — from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred? (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217, 223; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176, 179; Osipoff v. City of New York, 286 N. Y. 422, 425; Rosenberg v. Schwartz, 260 N. Y. 162, 166; Faber v. City of New York, 213 N. Y. 411, 414.) If there is such evidence the question was presented for determination by a jury — under proper instructions — whether plaintiff’s injuries were caused by actionable fault of the defendant.

had been observed by one of the defendant’s patrons, other than the plaintiff, more than a week prior to the plaintiff’s accident.

When the tank was nearly full the plaintiff released his hold on the valve cord to stop the flow of oil. After ascertaining by examination that the tank would hold 200 gallons more, he again wound the cord around his gloved hand and pulled the valve cord to release the flow. As he did so the cord broke and he fell from his kneeling position on the catwalk to the concrete surface below. A witness who was filling a tank truck at an adjoining platform, and who had noticed the plaintiff ‘ ‘ squatting ’ ’ on the catwalk and pulling the rope ”, saw the plaintiff fall from the catwalk and upon going to his aid found his body on the paved surface of the plant floor with a piece of the broken valve cord in his hand “ tied up around his fist, his hand ⅜ # ⅝ it was wound around the glove.” That witness described the condition of the valve cord as follows:

“ Q. Now, describe the condition of that rope as you saw it there that day. A. Well, the rope had a knot at the end of the rope and then about, I should say, about six to ten inches another knot, then further up where the rope was broken there was another knot, that the rope was broken before that, and it was tied together. * # *
“ Q. Tell me with reference to the break that you say was there, other than the break at the time of Betzag’s accident, was it above the piece that you picked off the ground or was it below the end of the piece you picked off of the ground? A. The break was below.
“ Q. How far below? A. Oh, I would say about eight or nine inches.
“ Q. As you looked at the rope can you tell us ¶⅛⅛ the id tion of it was? A. Yes:
“ Q. Well, what was it? A. The rope had all files on it. hi other words, a lot nf the strands had been 'broken.

of causation or of negligence even though it does not negative the existence of remote possibilities that the injury was not caused by the defendant or that the defendant was not negligent.” Here — where the complaint has been dismissed on the law, as in the Dillon case 179) —we think it enough that plaintiff upon the trial came forward with evidence of facts and conditions from which the defendant’s negligence and “ the causation of the accident by that negligence may be reasonably inferred.”

In the circumstances disclosed by this record we cannot say as a matter of law, as did the Appellate Division, that the accident which befell the plaintiff was not one within the reasonable range of anticipation.

The judgment should be reversed, with costs, and the case remitted to the Appellate Division for further proceedings not inconsistent with this opinion..

LoughbaN, Ch. J., CoNway, DesmoNd, Dye and Fuld, JJ., concur.

Judgment reversed, etc. [See 298 N. Y. 916.]  