
    William Pyne, Appellant, v. Marx & Rawolle, Respondent.
    Second Department,
    September 10, 1912.
    Master and servant — negligence — injury by fall of iron superheater — res ipsa loquitur.
    While defendant’s servants were placing putty where blocks had been in contact with an iron superheater, it fell injuring plaintiff’s hand. Held, that since everything was in complete order and strength, and the master could not have used greater diligence, the doctrine of res ipsa loquitur did not apply.
    That doctrine puts the master to an explanation of his conduct only, so that it may appear whether he has fulfilled his duty.
    Appeal by the plaintiff, William Pyne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of February, 1912, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term.
    
      J. Stewart Ross, for the appellant.
    I. R. Oeland [James B. Henney with him on the brief], for the respondent.
   Thomas, J.:

Defendant’s four servants were placing putty on an iron superheater when it fell on plaintiff’s hand. It was slung in a chain fastened to a fall passing through a block. The chain passes over a wheel and through a cog wheel, and as it was pulled from one side the burden was lifted, and from the other it was lowered, and the hooks were meantime forced into their proper place by springs that prevented slipping. The super-heater was raised some four inches from the floor and rested on blocks, and after its surface had been puttied it was raised, about a half inch to allow the blocks to be removed. This was done, and while the plaintiff and others were placing putty where the blocks had been in contact with the superheater it fell. There was no disturbance of the equipment found, save that the end of the chain had slipped off the wheel, but it is not intimated that this contributed to the accident. The super-heater was at once raised by the same apparatus, and no defect at the time of, before or after the accident was shown.. So the plaintiff invokes the rule of res ipsa loquitur. The masters supplied a tried method • of raising and lowering the superheater; they furnished chains that were strong, and unchallenged devices for holding them fast when need be; they afforded the co-operation of skilled and competent servants. The appliance was in its arrangement and action manifest to the eye. Four men were familiar with it and looking at it, and it continued in full view after the accident. And yet no one states any abnormal condition, or shows any cause that • did, could or must have caused the fall. In every known way the masters had used ordinary care, for the protection of their servants. The workman, also the man in immediate charge, is not shown to have negligently raised the superheater, nor does it appear that the spring pressing in the hooks was inadequate. The doctrine of res ipsa loquitur puts the master to an explanation of his conduct only, so that it may appear whether he has fulfilled his duty. But here everything was in complete order and strength, and" no master could have used greater diligence. However, I do not regard the rule as applicable. The happening of the accident does not of itself speak of negligent masters, while the circumstances rather show them vigilant. Nor does the happening of itself indicate of necessity negligence. There are no intricate or obscured mechanical parts here involved, starting into motion uninfluenced by the operator, and thereby declaring that something was so out of repair as to permit the escape and application of power. There the argument is that a machine in repair does not start of itself; that it did so start; hence it was out of repair, so let the master show due inspection and needed correction. In the present case the plaintiff’s case shows an abnormal slip, and all the simple parts normal, and no fact or opinion suggests that the foreman did aught that induced the fall. The facts do not speak and no expert has furnished an opinion upon which negligence can be based. So the case is indeed void of anything that condemns the employers.

The judgment should be affirmed, with costs.

Present—Hirschberg, Burr, Thomas, Carr and Rich, JJ.

Judgment unanimously affirmed, with costs.  