
    HENRY G. VOLKMAR, Appellant v. THE MANHATTAN RAILWAY COMPANY, Respondent.
    
      Negligence, Damages for personal injuries caused thereby.
    
    This action was brought to recover damages for injuries caused by an iron plate or clip falling upon the plaintiff from the railroad structure of defendant. The plaintiff proved the falling of the plate or clip while he was riding under the structure, and then rested. A motion to dismiss the complaint at this stage of the trial was denied an"d properly so, because the fall of the plate or clip in the absence of explanation, raised the presumption of negligence. The evidence given by the defendant was full and circumstantial and sufficient to 3 overthrow this presumption of negligence, and the burden thereafter rested upon the plaintiff to show that the defendant, in the exercise of due care, was bound to do, or omit to do, something else, by which the accident would have been averted. The plaintiff gave no such additional proof.
    
      Held, that it was in the nature of things, impossible for defendant to prove more, and it was incumbent upon plaintiff, by evidence, to point out the specific action which constituted the negligence, especially in view of the fact that he had carried off the bolt, the breaking of which caused the injury, and failed to produce it on the trial. In the absence of such evidence, a verdict was properly directed for the defendant.
    As the case was left, the occurrence came within the category of accidents that sometimes happen notwithstanding the exercise of due care by ail parties.
    Before Sedgwiok, Ch. J., Freedman and O’Gorman, JJ.
    
      Decided May 5, 1890.
    Appeal by plaintiff from judgment entered upon a verdict rendered on the direction of the Court against him, and from an order denying plaintiff’s motion for a new trial.
    
      Leavitt & Leavitt, attorneys, and Edwin R. Leavitt of counsel, for appellant, argued:—
    There is only one question to be reviewed, which is brought up by the exception to the direction of the verdict, and denying plaintiff’s motion to go to the jury. And it isn-espectfully submitted that the court erred in not submitting the case to the jury upon the question of defendant’s negligence upon the ground there stated, viz.: “That the evidence shows that the presumption arises that the defendant was negligent in view of the fact that this iron plate fell from its structure upon the plaintiff.” Did plaintiff, on proving the falling upon him of that iron piece from defendant’s structure, prove a fact that raised an issue to be submitted to the jury ? Clearly he did.
    First.—It is a well settled rule that it is a matter of right in the plaintiff to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or on inference to be drawn from circumstances in regard to which there is room for difference of opinion among intelligent men. Payne v. Troy & B. R. R. Co., 83 N. Y. 574. “ And if there is any evidence from which a jury might find in favor of the plaintiff, the case should not be withdrawn from their consideration.” Ib. “ When the thing causing the injury is shown to be under the control of the defendant, and the accident is such that in the ordinary course of business would not happen if reasonable care were used, it affords,in the absence of explanation by the defendant, sufficient evidence that the accident arose from want of care on its part.” Breen v. N. Y. Cent. R. R, Co., 109. N. Y. 297; Holbrook v. Utica, etc., R. R. Co., 12 lb., 243. The presumption of negligence arises from the cause of the injury. Ib. And when such presumption of negligence is once established by such evidence, it is clear that, whatever evidence is offered to disprove it, it must together with the former, be submitted to the jury, and that it is not then within the province of the court to say that, as matter of law, that presumption has been overcome by defendant’s evidence. Guided by these rules, it cannot seriously be contended that from the breaking of the bolt and falling of the plate, no inference of negligence could be drawn. And the learned justice recognized this when he refused to dismiss the complaint at close of plaintiff’s case and held, what counsel contends, that from proving the nature of the accident negligence was to be inferred.
    Second. In fact two inferences of negligence necessarily arise from such a fact : (1.) Negligence of construction. (2.) Negligence in maintenance and repair. The proof of the defendant’s expert, Wellington, that that clip-fastening was proper and in general use, might possibly be sufficient, in the absence of conflicting evidence on that point, to show no negligence of construction, so as to take away, as matter of law the first inference. But even then the jury might have very justly said that the clips being known by defendant to come off it was its duty to take greater care—some precaution, such as placing a receptacle under them, etc.—to prevent them from falling on unsuspecting persons. The defendant did not show such a thing was impossible, and it needed no other expert than an intelligent jury to show, that such a thing could be done. But granted that as matter of law the first inference of negligence, viz., in construction, was taken away by the. expert testimony, surely the second inference of negligence, viz., in maintenance and repair, remained. The mere evidence of Roach that he had, pursuant to defendant’s instructions given him in 1878,gone carefully over the track and looked at bolts, etc., continuing so doing in June, 1885, was not enough to free defendant from all imputation of negligence. Granted he did all he said he did (and he nowhere testified he made any examination of the track on June 24, 1885—the day of the accident—nor the day nor the week before, could not this jury have inferred that he, one of defendant’s servants, had negligently carried out his instructions, from the mere fact that he allowed this clip and bolt to get into such a condition that they fell ? The very fact that he knew they occasionally came off should have entailed greater care in his inspection, and the jury could very rightly say that to allow a part of its mechanism —and such a part—to get into such a loose condition as to menace persons traveling on the highway was, in fact, conclusive evidence of negligence. The thing causing the injury was wholly under defendant’s care, and plaintiff was perfectly innocent, and no explanation is given by defendant of the cause of the accident, except that “ the clips come off and 'accident is likely to happen,” If such an explanation as that is, as matter of law, a good one, then, as matter of fact the Elevated Roads can continue dropping their “ structure ” upon the crowded thoroughfares with perfect impunity. The same reasoning applies with equal force to a portion of the structure collapsing, such as a pillar, or this bolt and plate in evidence here. Under the court’s ruling it is clear that the plaintiff was remediless unless he showed affirmatively either (1) that the kind of fastening was unsafe and improperly constructed ; (2) that this particular clip was negligently and improperly fastened. The first could only be shown by experts, contradicting Wellington, who might or might not have been procured. The second, plaintiff, of course, could not show, as the court evidently recognized, for it gave him the opportunity, saying, “You can show that this bolt was improperly fastened—if you can.” What an irony of ironies to permit his plaintiff in order to send his case to the jury to prove that one of about 140,000 clips belonging to and fastened by defendant, was improperly and negligently fastened, by proof other than the fact that it did break and fall! By every principle of common sense, counsel respectfully submits, the jury should •have determined this question of defendant’s liability here, and the court erred in withdrawing the case from their consideration.
    Third.—But the principle that counsel has urged as governing this case is as well sustained by well-settled authorities as by common sense. A railroad company is bound to use ordinary care for the purpose of laying its track and roadbed in such a manner as to make the road safe for the use of its passengers, and of all persons having the right to pass over or under it, or to be upon it, or to have their property thereon. Shearman & Redfield on Neg., Vol. 2, § 406. In a case where an injury happened to one working on a dock by the fall of a door, the court say : “Whether the doors or gates were properly constructed to secure safety, whether the principle on which they were constructed was reasonably safe, or if so, whether the principle was operated with reasonable guard to secure safety, or whether the machinery had got out of order and become unsafe, were questions of fact for the jury to determine.” Newall v. Bartlett, 114 N. Y. 404. And the rule laid down in the leading case of Kearney v. London, etc., R. R. Co., (L. R., Q. B., 411), and followed in" this state, is the very rule under which the learned justice should have sent this case to the jury. The facts there were, that the plaintiff was passing on a highway under a railway bridge,, when a brick fell and injured him on the shoulder. A train had passed over the bridge shortly - before- the accident. The bridge had been built three years, and was an iron girder bridge resting on iron piers on one side, and on a perpendicular brick wall with pilasters on the other, and the brick fell from the top of one of the pilasters where one of the girders rested on it. On a -motion to nonsuit on the ground that there was no evidence of defendant’s negligence, the court held, that there was prima facie evidence, and that the maxim of res ipsa loquitur applied, upon the principle that whenever it is the duty of the defendant 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 defendant to show that it used that reasonable care and diligence which it was bound to use ; and that the absence of that care may be fairly presumed from the fact that there was the defect from which the accident had arisen.” Mullin v. St. John, 57 N. Y. 570. And the court there held further, to wit: “ When the plaintiff proved that the building fell on to the street and injured her, she had made out a case in the absence of any explanation on the part of the defendant, as buildings do not usually or necessarily fall, and that it is for the jury to say, under all the evidence, whether that explanation on the part of the defendant is reasonably made.” lb., p. 568 ; Lowery v. Manhattan R. Co., 99 N. Y. 163. In another case, exactly in point, the facts were these : As plaintiff was entering his cellar he was struck on the head by a bar of iron. The tracks of defendant’s Elevated road passed in front of plaintiff’s premises, supported on elevated iron structures, and at the time of the accident a train was passing overhead. The bar was seen descending from the train, and its flight was observed from the time it began to so descend until it struck plaintiff. Held, that it was proper to deny a motion to dismiss the complaint upon the ground that no negligence on the part of defendant causing the injury had been shown. And the court say : “It may be unnecessary to say that the plaintiff was entitled to protection from any negligent act of the defendant while in the exercise of any right of property and the lawful use of the street, and that it was the duty of the defendant, in the exercise of its franchise, to use all necessary caution, care and diligence to prevent injury to person and property. * * * The iron which fell is germane to the structure, which is chiefly of that material, as well as the machinery employed, and it must be that it was broken off in’ some way while the franchise was in use, which would indicate, the absence of that care and duty—that high sense of obligation—which is imposed upon the defendant to keep its structure and machinery in such perfect condition that ¡no one—except by.extraordinary circumstance to be proved by it—shall be injured. And this rule should apply as well to wayfarers along the public streets as to passengers.” Maher v. Manhattan R. Co., 6 N. Y. Sup. 309 ; Supm. Ct. 1889. And the case of Goll v. Manhattan R. Co., recently decided by this court, is on all-fours with the present case. The plaintiff while walking on the sidewalk on the Bowery, immediately under the track of defendant’s Elevated railroad, was' struck by a heavy piece of metal, which fell from one. of defendant’s cars passing above. This piece of metal was part of the cylinder of the engine, which cylinder had suddenly burst, scattering the pieces ; and this court held : “ That from the nature of the accident itself negligence on the part of- the defendant might be inferred.” Goll v. Manhattan R. Co., 57 N. Y. Super. Ct. 186. What difference what part of defendants’s mechanical contrivances breaks ? So long as it is shown to break and injure some one, it is for the jury to say whether the breakage was through defendant’s negligence, or whether defendant was reasonably careful. The learned justice who tried this case has elsewhere held, “ The happening of the accident, therefore, affords evidence, in the absence of explanation, that the accident happened from want of care.” Gerlach v. Edelmeyer, 47 Super. Ct. 297.
    
      Dames & Rapallo, attorneys, and EdwardS. Rapallo and Brainard Tolies oí counsel, for respondent,argued
    The verdict in defendant’s favor was rightly directed. The evidence which the defendant produced for the purpose of overthrowing the presumption of negligence was absolutely uncontradicted, and was of the most positive and decisive character. To have refused to direct a verdict upon such evidence would have been to rule that the presumption of negligence arising from the mere happening of an accident was incapable of being overthrown. It was in the nature of things impossible for the defendant to prove more than that the original construction of the road in this particular was in accordance with the best methods in known practical use, and that it had been subjected to regular and careful inspection ever since. If this did not constitute a defence, nothing could. The plaintiff had carried off the bolt, the breaking of which caused the injury, and “ lost” it. His only evidence is the falling of the plate. Against the presumption thereby raised was the testimony of two credible and uncontradicted witnesses, showing that the occurrence came within the category of inevitable accidents. In Elwood v. Western Union Tel. Co., 45 N. Y. 553, Rapallo, J., said, delivering the opinion of the Court of Appeals : “It is undoubtedly the general rule that where unimpeached witnesses testify distinctly and positively to a fact and are uncontradicted, their testimony should be credited and have the effect of overcoming a mere presumption.” The case at bar is substantially indentical with Searles v. Manhattan Railway Company, 105 N. Y., 661. In that case a cinder from defendant’s locomotive fell in defendant’s eye. In spite of uncontradicted evidence on the part of the defendant, that its appliances for preventing the escape of sparks and cinders were skillfully made and the best known for that purpose, the jury were allowed to render a verdict in favor of the plaintiff. The Court of Appeals reversed the judgment, Earl, J., saying: “ The undisputed evidence shows that all the appliances used on defendant’s locomotives to prevent the escape of sparks and cinders were skillfully made and were the best known. There was no evidence that any of such appliances were defective or out of order. The mere proof of the escape of cinders was not sufficient, as the evidence showed that their escape could not be avoided and was inevitable.* * * When the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which it is not responsible the plain tiff must fail if his evidence does not show that the damage was produced by the former cause. And he must fail also if it is just as probable that they were cahsed by the one as by the other, as the plaintiff is bound to make out his case by a preponderance of evidence. The jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the negligence and unskillfulness of the defendant is not sufficient.” In this case the falling' of the plate was caused by the breaking of an iron bolt three-quarters of an inch thick, at about an inch and a half from the nut in the interior of a wooden beam. The place where the break took place was entirely concealed from sight and the defect in the bolt, if such there was, could not be discovered except by taking the structure apart. Every other source of danger from the use of the plates had been obviated, except that arising from the breaking of the bolts. This there was no known means of preventing. And accidents of this kind were so rare that out of the many thousands of such bolts in use only six had broken in twelve years. In view of these facts the court was justified in directing a verdict for the defendant, under the rule laid down in Dwight v. Germania Life Ins. Co., 103 N. Y. 359.
   By the Court.—Freedman, J.

This action was brought to recover damages for personal injuries occasioned by an iron plate or clip falling upon the plaintiff from the railroad structure of the defendant. The fall of the said plate or clip was alleged as having resulted from the negligence of the defendant or its servants. This was denied by the answer. The plaintiff proved the falling of the plate or clip while he was riding under the structure, and then rested. A motion to dismiss the complaint at this stage of the trial was denied, and properly so, because the fall of the plate or clip, in the absence of an explanation, raised a presumption of negligence. The defendant then showed that both in the construction and the maintenance of the road great care had been taken to guard against such an occurrence; that the plate or clip had been secured according to the best method in known practical use at the time of the accident and with more than usual precaution; that the plate or clip could only have come off by reason of the breaking of a bolt; and that the break in question, in the manner it did occur, was not discovered or discoverable notwithstanding the exercise of great care. As a whole the evidence thus given by the defendant was full and circumstantial and sufficient to overthrow the presumption of negligence. The burden thereupon rested upon the plaintiff to show that, notwithstanding all that was shown by the defence, the defendant, in the exercise of due care, still was bound to do, or omit to do, something else by which the occurrence would have been averted. The plaintiff gave no such additional proof. Nor could an inference be competently drawn from the whole evidence notwithstanding the explanation given by the defendant, that after all the defendant was negligent in some specific particular. It was in the nature of things impossible for the defendant to prove more than it had proved, and it therefore became incumbent upon the plaintiff to point out the specific thing which constituted the alleged negligence, especially as he had carried off the bolt, the breaking of which caused the injury, and had not produced it. In the absence of such proof or inference pointing to specific negligence, a verdict was properly directed for the defendant. To have refused to direct a verdict under such circumstances, would have been equivalent to hold that the presumption of negligence arising from the mere happening of an accident, was incapable of being overthrown. As the case was left, the occurrence came within the category of accidents which sometimes do happen in spite of the requisite care exercised by both parties.

.The judgment and order should be . affirmed with costs.

Sedgwick, Ch, J., and 0’Gorman, J., concurred.  