
    William Welsh, Plaintiff, v. John Murray and Thomas F. Murray, Defendants.
    
      Negligence — the fall of a derrick does not of itself show negligence — testimony as to-its subsequent condition.
    
    In an action brought to recover damages resulting from injuries caused by the-alleged negligence of the defendants, it appeared that the defendants, who were contractors with the city of New "York to lay a sewer, used a derrick to take material from the sewer, bring it over and dump it between two tracks of' a street railway company; that the plaintiff was employed by the railway company to keep its tracks clear and, if a car was coming, to swing the boom, of the derrick out of its way; that while he was doing this the derrick, in some-unexplained way, fell down and injured the,plaintiff.
    
      Held, that the defendants were not guilty of negligence;
    That, as they were rightfully in the street, and as there was no contract relation, between them and the plaintiff, they owed him no duty to provide him with, proper tools or appliances;
    That the mere fact that the derrick fell in some unexplained manner and struck the plaintiff, was not sufficient to charge the defendants with negligence in. placing the derrick or using it in the manner they did;
    That the testimony of a witness, who examined the derrick after it fell and. after it had been moved to another position, as to what he then discovered, was properly excluded.
    Motion by the defendants, John Murray and another, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the dismissal of the complaint, directed by the court after a trial at the Hew York Circuit-on the 16th day of October, 1893, before the court and a jury.
    
      L. J. Morrison, for the plaintiff.
    
      Charles C. Nadal and Nranicis L. Wellman, for the defendants..
   Ingraham, J.:

We do not think there is any evidence upon which the jury could have found that the defendants were negligent. Plaintiff seems to-have been employed by the Third Avenue Railroad Company to-keep the track of the company clear, and, if a car was coming' down, to watch and hold on to the boom of a derrick being used by the defendants, or one of them, in the construction of a sewer on. Third avenue, and, see that it did not catch a car and break it. This boom was used to take- earth out of the sewer, and com,e across and ' dump it between the two tracks. This is the plaintiff’s account of his. employment. He was on this duty from November, 1890, to June, 1891, when in some way he was injured. The following is his account of the injury: “ On June 4, 1891, I remember I was hit on the head first, and then I can’t tell anything else. When I' came to myself I don’t know whether I was on the track or in the hospital!’ On cross-examination he testified: “ I was shoving the boom around when the derrick fell on me—was pushing it out of the way of the car that was coming down the grade. I was shoving the boom around when it came down. I was handling the derrick when it came down. I am sure my shoving the boom did not help the rope to break. I shoved it many times before, and it never fell.” '

Greenwald, a witness sworn for plaintiff, testified that on June 4,1891, he went up to this place, and saw the mast of the derrick lying on the track, and Welsh was lying there injured. He said he did not know how it fell, was not there when it happened. This witness further testified that he did not know much about the -construction of derricks, but that, this derrick was held in place by ■four wire ropes ; that the ropes that held the derrick up were lying ■down with the derrick; that “ when the derrick was lying down the ropes were lying on the ground too.” The witness further testified that he had sent Welsh up to this place, and gave him instructions -to look out for the work, but did not give him instructions to stand "up close to the derrick.

There was no contractual relation between the defendants and •this plaintiff. The defendants were constructing .a sewer under a ■contract made with the city of New York and were thus rightfully in the street, the plaintiff being employed by the railroad company to see that the track was kept clear, and to warn an approaching car if the track was obstructed by the work. And to entitle the plain"tiff to recover in this action it was necessary to allege and j>rove that "the defendants were in some way negligent in some duty that they •owed to the plaintiff. The plaintiff not being in the defendants’ •employ there was no duty to provide the plaintiff with proper tools and appliances with which to -do work that plaintiff was employed to do. The only evidence that we have that there was any negligence is that the plaintiff, while pushing the boom of the derrick, was struck by something, and that after the injury the derrick was down upon the street. We are not told what it was that struck the plaintiff, whether the plaintiff was injured in consequence of the boom’s falling or the derrick falling, or what it was that struck him, but the simple fact is that the plaintiff was struck by something and that after that the derrick was down in the street.

We do not think that this is a case to which the maxim res ipso loqytAi/a/r was applicable. That rule has been applied in cases where an express duty exists to maintain a structure in such a condition that persons lawfully using a public street or highway shall not be injured. This is stated by the presiding justice, in the case of Morris v. Strobel & Wilken Co. (81 Hun, 3), as follows: “ The principle stated was that whenever it is a defendant’s duty to use reasonable care to keep a bridge, or'other structure or premises, in a proper condition as respects persons passing along the highway, and these are out .of condition and an accident happens, it is incumbent upon him to show that he used that reasonable care and diligence which he was bound to, use; and that the absence of that care may fairly be presumed from the fact that there was the defect from which the accident had arisen.” It is clear that this case does not come within this principle. The defendants here were using’ a derrick to construct a sewer under a contract with the city of Hew York. The plaintiff was not using the street as a highway, but was watching the very work that the defendants were engaged in doing. The derrick in question was not a permanent structure erected upon or adjoining the street, but a structure of a temporary nature, its use requiring that it should be constantly shifted and applied in different positions as the work progressed. And the fact that such an appliance in some unexplained way struck the plaintiff is no evidence that there was any negligence on the part of the defendants in placing the derrick or using it as it was used. The mere fact that John Murray had told the witness to shove the boom around, and to give a hand to help the man that was pulling the tack rope, does not change the relation between the plaintiff and the defendants.

It was at most a mere license to the plaintiff to assist the defendants’ men clearing the track, and it is'not alleged that Murray told the plaintiff to shove this boom around at the time that he was injured. It seems that at the time a car was coming and the plaintiff was shoving the boom around to push it out .of the way of the car. He thus voluntarily placed himself in a position under the derrick, and there being no evidence that the derrick was improperly used or that the act happened because of any negligent act of the defendants, there was no evidence to justify the jury in finding that the defendants were negligent.

The exclusion by the court of the testimony of the witness dynes upon cross-examination was not error. The witness did not examine the derrick until .the afternoon of the day that the plaintiff was injured, after the derrick had been moved from the position in which it fell, and the question as to what he then found out, of as to whether he then observed the ropes of the derrick, was entirely immaterial.

We think the complaint was properly dismissed. The exceptions should be overruled and judgment directed for the defendants, with Costs.

* Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred:

Exceptions overruled and judgment directed for the defendants, with costs.  