
    Barnet Schapiro, Respondent, v. Samuel Levy, Appellant.
    
      Negligence—injury to an employee of a milk dealer from the breaking of the handle of a milk can.— the mere fact of its breaking is not evidence of negligence' on the-dealer’s part — a charge that a failure to produce the books of one who had repaired; the cans might be considered, by the jury is improper.
    
    In an action brought to recover damages forpersonal injuries, it appeared that, the defendant was a wholesale milk dealer who used in his business a large-number of "milk cans, each of which had two iron handles attached thereto- and when filled weighed 100 pounds; that the plaintiff was the driver of one of the defendant’s milk wagons and that while taking a milk can from the wagon one of the handles of the can gave way and the can fell upon his foot, injuring; him.
    
      The plaintiff testified that at the time oí the accident he had hold of the can by one handle while in his complaint he alleged that the proper way to handle the can was to grasp both handles. ' There was no evidence that the can including the handle was not perfect in every respect when furnished by the defendant, ¡nor that the can was not thereafter properly cared for and inspected nor that there was any defect in it, except such as might be inferred from the fact that the handle gave way.
    
      Held, that no negligence on the part of the defendant had been proved and that a judgment entered upon a verdict in favor of the plaintiff should be reversed; That the fact that the handle gave way was not in and of itself sufficient to justify a finding that the defendant had failed to perform the duty which he owed to the plaintiff;
    That such fact might possibly justify a finding that there was some defect in the can, but that it did not justify the finding that the defendant was responsible for such defect;
    That it was error for the court to charge at the request' of the plaintiff, that if the books of certain third parties, whom the defendant had employed to repair some of his milk cans, had been produced, they would have been some evidence of the truth of the statements made by defendant as to how many times he had had the cans repaired and as to what repairs had been made, and that the non-production of such books might be considered by the jury in determining whether the plaintiff was entitled to recover.
    Appeal by the defendant, Samuel Levy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th day of March, 1904, upon the verdict of a jury for $950, and also from an order entered in said clerk’s office on the fth day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Otto A. Rosalsky, for the appellant.
    
      Jacob Rieger, for the respondent.
   McLaughlin, J.:

Action to recover damages for personal injuries alleged to have been sustained by reason of defendant’s negligence. At the time .stated in the complaint the defendant was a wholesale dealer in milk, and in the prosecution of his business owned between 4,000 and 5,000 milk cans, known as the Hew York city pattern. Each can had two iron handles attached to it, and, when, filled with milk, weighed about 100 pounds. These cans, when filled, were shipped to the defendant from different places, and on their arrival at the place of shipment were placed upon heavy wagons, and then delivered to various retail dealers. The plaintiff at the time of the accident, and for about a year and a half prior thereto, had charge and was the driver of one of these wagons., On the morning of the accident, after loading the wagon with cans, he proceeded upon his route to distribute the milk among the customers of the defendant. In taking one of the cans from the wagon for this purpose, one of the handles gave way, the can fell, striking, him upon the foot, and inflicting the injury of which he complains. He had a. recovery, and the defendant has appealed.

In the complaint he charged that “ the milk cans furnished by the defendant had ordinary handles thereon, and such cans were lifted and taken from the wagon furnished by the defendant to the plaintiff-by being taken hold of by such -handles,, and such was and is the usual -and only proper manner of handling such cans-.” At the trial he testified that during the time he had been in the employ of the defendant the handles upon the cans, so far as he had observed, were safe; that he -had never known or heard of an accident of this kind; „ and that he did not observe anything Wrong about the can in question until the handle gave way. In stating' how the accident occurr.ed he said : I was standing at the time on the sidewalk when I got hold of the can. * * * ' The first thing I did I took the can right this way (indicating) by the handles to-take it right off. I had to take it with both hands. It- had two-handles'on the side. I did not take hold of both handles. I must take hold of one handle with the hand]and take hold of the head with the other hand, that is, when I lift it out of -the wagon. After I got it out of the wagon and wanted to leave it down on the sidewalk, I get hold of the handle. I had one handle in this one and the other one by the top, I took it. I held a handle with the right hand. Then it broke down and fell right on my foot. The handle broke down and the. can fell right down on my foot. ' The iron ring of the handle broke. The tin that was on the can broke.. The cans-were made of tin. The handles were made of iron: - The handle is held on to the can just like' this — two handles holding it. The handles are fastened with two rivets holding the tin, and this iron handle runs through it. The tin broke.”

This is all the evidence that was produced as to the condition of the can at or prior to the accident, and it scarcely needs argument or the citation of authorities to show that it is insufficient to sustain a verdict. There was no evidence which showed, or tended to show, whether the tin or handle had become weakened in any way by age or use, or what defect, if any, there was in either, or what, in fact, actually caused the handle to give way. The plaintiff on entering and continuing in the employ of the defendant assumed the risks-incident to the handling of the cans, while the defendant was bound to furnish reasonably safe cans, and if he did this, he was not liable for an injury resulting from, the giving way of one of the handles, unless it appeared that he had been guilty of some act of omission or commission with reference thereto. There is no proof, nor is-there a suggestion in the record that the can, including the handle, when furnished by the defendant was not perfect in every respect, nor is there any evidence which would, justify a finding that proper care and inspection of the can were not thereafter made, or that there was any defect in it, except such as may be inferred from the handle giving way. Indeed, the only suggestion or explanation as to the cause of the accident is that given by the. plaintiff himself and his witness Blnmstein, and that is, that he undertook to lower the can from the wagon to the sidewalk by one handle, when, if the allegations of his complaint be true, the proper way of handling it ■ was to take hold of both handles. The fact that the handle gave way was not, in and of itself, sufficient to justify a finding that the defendant had failed to perform the duty which he owed the plaintiff. It might possibly justify a finding that there was some defect in the can, but not that the defendant was responsible for it. Defendant was not responsible unless he had been negligent, and his negligence' could not be presumed. It had to be proved. This was the basis, of plaintiff’s right to recover. (De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 125; Flood v. Western Union Telegraph Co., 131 id. 603; Carlson v. Phoenix Bridge Co., 132 id. 273; Dingley v. Star Knitting Co., 134 id. 552.)

This being the condition of the evidence at the close of plaintiff’s; case and at the close of the whole case, defendant’s motion to dismiss the complaint or for the direction of a verdict should have been granted, and the exceptions taken to a denial thereof were well taken.

The judgment must also be reversed for errors in the charge. Proof was admitted to the effect that the defendant employed third parties to repair some of the cans which he had in use, arid the •court, upon request of plaintiff’s counsel, charged in different forms, in substance, that if the hooks of such third "parties had been produced they would have been some evidence of the truth of the ■statements made by defendant as to how many times he had had the cans repaired; what repairs had been made; and that the non-production of such books might he considered by the jury in ■determining whether the plaintiff was entitled to' recover." The ■defendant’s counsel duly excepted to such instructions. The exceptions were well taken. The books, if produced, would have been inadmissible, and, had they been received, would not, so far as appears, have proven anything with reference to the can in question.

Other errors are alleged, but it is unnecessary here to consider them inasmuch as they are not likely to be presented upon another trial.

The judgment and order appealed from must be reversed and new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., Patterson, Ingraham and Laughlin,-JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  