
    James Kern, Respondent, v. The Burden Iron Company, Appellant.
    
      Negligence—a claim that an accident resulted from a defective planh in a trestle— it cannot be supported by proof that the trestle was generally defective.
    
    Where a right of recovery in an action is based upon the alleged negligence of the defendant in suffering a plank in a platform upon the side of a coal trestle to become defective to such an extent that while the plaintiff was walking upon the plank it gave way, throwing him upon his knees so that he grasped for support one of the rails laid upon the trestle, and as a consequence his-hand was crushed by the wheel of the coal car, the liability of the defendant for such in j uries cannot be established by proof that the trestle which belonged to it was generally defective at other points, but the plaintiff must show that there was a defect, in the particular plank where the accident occurred.
    In such a.case the defendant is entitled to have the court charge the jury that if they find “ that the trestle where the plaintiff was at work at the time of the accident was a reasonably safe place for the plaintiff to do such work as he was engaged at, and that the accident was a casualty, the plaintiff cannot recover a verdict for damages even though they should also find from the evidence that the plaintiff was'free from negligence or want of care on his part.”
    Appeal by the defendant, The. Burden Iron Company, from a judgment of the Supreme- Court, in favor of the plaintiff, entered-, in the office of the clerk of the county of Rensselaer on the 24th day of October, 1896, upon the verdict of a jury, and also from an order hearing date -the 22d day of October, 1896, and entered in-said • clerk’s office denying the defendant’s motion for a hew trial made upon the minutes'. ■ . ■ -
    . Psek Gowen, forthe .appellant..
    
      Charles JS. Patterson, for the respondent.
   Parker, P. J.:

" On the 4th of February, 1887, the plaintiff was in the employ of the defendant, engaged ill pushing a coál car along a trestle; Tlie track- upOn such trestle was some -fourteen feet above the ground; On either side .of it was ..a planltor platform upon which the men could walk that were pushing the .car.' The plaintiff claims that the . end of the plank 'upon which he was walking had become so-' rotten that the nails pulled out ancl let the end of the plank fall down, so that as he stepped upon it. he was thrown, forward upon his knees ; that as lie fell he-grasped tlie rail for support and the car wheels ran onto his hand and crushed it; He .brings this action to -recover for the damages so sustained. The place where the-' accident occurred Was some six or eight feet north of the -boiler house, and - the. plaintiff , is the only witness in his behalf who describes the condition of the plank at that point. Three other witnesses produced by him -testified' that the general' condition of the plank of walk on either side of the trestle -was bad, only one plank wide in many places and generally "loose ; but it is plainly -apparent that the proof of the defective conditiori of the plank, which plaintiff claims existed at the point of the accident, rests entirely upon ins own testimony.

It is also plain that, unless the accident was- caused by some defect In the plank-or trestle at that point, a'liability for plaintiff’s injuries cannot be sustained, even though the trestle was out of order at other points. The issue presented, therefore, was a very narrow one, and in my judgment the weight of evidence was decidedly against the plaintiff.

It appears, without contradiction, that the trestle work was originally constructed in 1883 or 1884, some three or four years only before the accident. It was thus substantially new at that time. It also appears from the evidence of five witnesses, neither of whom was impeached or his character in any way discredited, that there was at the place where plaintiff was hurt a walk two planks wide, and that such plank were neither unsound nor loose. Two of such witnesses saw the walk just before and just after the accident. All the others saw it the next morning. The statements of neither of these witnesses can be reconciled with the plaintiff’s. It cannot be supposed that the walk was repaired before the next day, because there is not a particle of evidence upon which to base such a supposition. The testimony of all the five witnesses is in direct 'conflict with that of the plaintiff; and, if their' evidence is true, the plaintiff was not injured by reason of any defect in the walk or the trestle. On their evidence the only rational conclusion is that the plaintiff slipped on the walk, not that it broke down and threw him upon the track. And why was the evidence of all these witnesses discredited and the statement" of the plaintiff alone accepted by the jury as true ? It would seem that the jury could not have correctly understood the real question upon which the defendant’s liability depended.

During the trial plaintiff’s three witnesses were allowed to testify, under defendant’s objection, that the walk on either side of the trestle work and in many places other than that where the accident occurred was in bad condition and generally out of repair. The jury were told by the trial court that it was the duty of the employer to provide for his employee a reasonably safe place in which to prosecute the work assigned to him. They were also substantially told that the plaintiff testified that the plank upon which he was walking was rotten, so that the nails pulled out, and that it gave way. under him, and that he claimed from such evidence and that of' his three witnesses — who testified to the defective condition of the walk' at other parts aboitt the trestle work — to hake established the .fact that the walk was not in a reasonably safe condition for .use. It would seem, that the admission of this evidence and the way it was "put to the" jury must have misled them-as- to; its legitimated effect, and that they must have concluded that the defendant was liable if such walk and trestle was , not in all its parts in a sound and safe condition.

Also, the court was asked by the defendant’s counsél to charge, “ that .if the jury find that the: trestle where the plaintiff was at work at the time of the accident .was a reasonably safe place for the." plaintiff to do such work as he was engaged at, and "that the accident was a casualty, the plaintiff cannot recover a verdict for damages, even though they should .also.find from the evidence that the plaintiff was free from negligence or want of care"oil his.part,” ’ This request was refused. It gives point to the idea that if the place where plaintiff was at work was-reasonably safe, and that, if . liis injury was owing to a casualty ” —- his accidental slipping for instance •— in that case the . defendant would not be liable even ' though the plaintiff Was himself free from fault. It seems to. lhe that such was a sound jiroposition, and, under the circumstances of this case,, should have been charged. -The refusal to charge it tended, to leave' the minds of the jury in confusion.

It is manifest that-the weight of evidence in this case is against the verdict rendered, and that substantial justice requires that a new trial be had. •

All concurred.

Judgment arid-order reversed and a new trial granted,. costs to abide the event.  