
    John H. Fink, Respondent, v. Emmett F. Slade, Appellant.
    
      Master and servant—injury from the falling of a movable platform in an ice house — an “ appliance,” not a "place” — the negligence must be shown to be that of the master, not that of a co-servant — res ipsa loquitur.
    A platform, maintained in connection with an ice house, consisting of several sections capable of being raised and lowered by means of cables attached to each section and wound around drums at the top of the building, designed to enable ice to be placed in the ice house at any elevation, and which could be so adjusted that the ice placed upon it would slide along it to the different rooms in which the ice was to be placed, is not a “place” in the legal sense of that word, but is an appliance or instrumentality whereby the work of storing the ice is done.
    The fact that the workmen engaged in pushing the ice along the platform, and in switching it from the platfprni into the ice house, stood on the outer sides of the platform, does not change the character of the appliance.
    Evidence that while there were upon the platform eight or ten men and from thirty-five to forty cakes of ice, each weighing two hundred and fifty pounds, three of the sections of the platform fell for some unexplained reason, injuring a person employed on the platform, does not, in an action brought by the injured employee ‘against the owner of the ice house to recover damages for the injuries sustained by him, where it appears that the accident might have resulted from the negligence of the plaintiff’s fellow-servants, present a case for . the application of the rule of res ipsa loquitur, as that rule only applies when the facts warrant an inference of negligence and also establish that such negligence was that of the defendant.
    Appeal by the defendant, Emmett F. Slade, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of October, 1900, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on - the 7 th day of- November, 1900, ^denying the defendant’s motion for a new trial made upon the minutes.: . .......
    
      Edward W. Douglas and Lewis E. Carr, for the appellant.
    
      E. Countryman and P. E. Du Bois, for the respondent.
   Edwards, J,:

This action was brought to recover damages for personal injuries sustained by the plaintiff by. the alleged negligence of the defendant.

At the time of the accident the plaintiff was in the employment Of the defendant, engaged, with others, in filling defendant’s ice house on the west side of the Mohawk river above the Cohoes dam. Men had been so engaged for about two weeks before -the accident;

The ice was taken from the river and was carried, by means of an incline plane or elevator,, to the northwest corner of the house, where it was switched off upon a movable platform .from which it was distributed in the different rooms or compartments of the building. There were seven of these rooms, each, thirty feet wide, running easterly from the platform to the other side' of the .building and numbered from one to seven, beginning at the north end, The platform, seven or eight feet in width, was within the building on the west side, and extended the length of the house from north to south. It consisted' of seven sections, each thirty feet in length, bolted or hooked together. Each section was supported by two wire cables attached to each end extending upwards. and wound around a drum at the top of the building, there being a drum for each section. At the end of the drum was a wheel with cogs, and underneath,. fitting into the cogs, was a screw with a wheel' at the end eighteen inches in diameter, by the turning of which the cable on the drum was wound or unwound and thereby the platform was raised or lowered so as to adjust its position to the elevation'of the-ice in the rooms of the house. There was a space in this platform along which the -cakes of ice ran or were pushed, outside of which. Were timbers, to keep the ice in the center, and on the outside was a plank twelve inches wide running the same way as the. timbers and on which the men stood. Until the rooms .were nearly filled the platform was so adjusted as to incline from north to south so .that the cakes of ice would of their own weight run along this space until they reached the rooms where they were to be placed, at the doors of which -men were stationed to switch the cakes from the platform into those rooms; but when the rooms were nearly filled the platform was nearly level, and it Was necessary for the men to pull or push the ice along untiL.it reached the rooms which they were filling.

On January 23, 1899, and in the forenoon of the twenty-fourth the platform was inclined and the plaintiff was engaged in switching ice from it into the rooms, but at the time of the accident, on the twenty-fourth, the rooms being nearly filled, the platform was level and the plaintiff was assisting in pulling or pushing the ice on the platform. At some time in the afternoon of the twenty-fourth, after room No, 4 was filled, Foley, a fellow-laborer of the plaintiff, with another workman, raised the platform. He says he does- not know which. section it was, whether it was room 4 or 3. He says they took hold of the wheel and turned it and as they turned it that wound up the wire cables .on the drum. The plaintiff says this was just before dinner. The platform' was then thirty or thirty-two feet above the floor of the icé house. At about half-past four o’clock, .while the plaintiff was on the platform between sections 4 and 5, suddenly, and for some unexplained reason, sections 3, 4 and 5 of the platform fell and the plaintiff was precipitated to the ground.

About two minutes before the accident the elevator had been stopped because the ice was coming too fast for the men in the rooms to handle. There were on the platform eight or ten men and from thirty-five to forty cakes of ice, each weighing 250 pounds.

The. foregoing are all the facts and circumstances, except those relating to the extent of the injury, attendant on the accident show;n on the trial. The plaintiff offered no evidence of any specific negligence by the defendant, but rested his case on the proposition that these facts created a sufficient presumption of negligence for submission to the jury. The defendant introduced no evidence. The trial court, in denying the motion for a nonsuit, held the plaintiff’s proposition to be correct, and the jury returned a verdict for the plaintiff. The question, therefore, presented for our consideration is, whether there was sufficient evidence of the defendant’s negligence to justify the submission of the case to the jury.

The relation between the parties was that of master and servant, and the duty which the defendant owed to the plaintiff was to use reasonable care to provide safe and suitable machinery and appliances, competent fellow-servants and a safe place to do the work assigned to him. Negligence is never presumed, but the burden of proving it is on him who alleges it. It was incumbent on the plaintiff to establish facts from which it might reasonably be inferred that the defendant was guilty of a violation of some duty which he owed to the plaintiff as a servant. These principles, have been so long and so well settled as not to require any citation of authorities and I do not understand that they are here questioned. It was necessary, therefore, under the circumstances of this case, for the plaintiff to show either that the defendant had' not furnished to him reasonably safe machinery, appliances and instrumentalities for doing the work in which he was engaged or competent fellow-servants. I do not think the question of a safe place is involved, as the platform was not a “ place ” in the legal sense of that word. It was rather a part of the appliance or instrumentality whereby the work was to be done. It was so arranged that it could be raised or lowered by the servants, whose duty it was, so as to accommodate it to the elevation of the ice in the building, and the several sections could be raised or lowered so as to give the platform such.an inclination that the' ice brought to it by the elevator could slide of its own weight through the groove or space made in the center for that purpose to the different rooms in which the ice was to be placed. The work to be done was the taking of the cakes of ice from the river and placing them in the different rooms of the building, and the plat, form was as essential for that purpose as was the - elevator. As an instrumentality for doing the work'it was indipensable, and taken in connection with the elevator it constituted the machinery or appliance whereby the work of tilling the house with ice was to be "accomplished. It is true that the plaintiff and the other workmen in the use of the platform stood on the outer sides of it, but this fact did not change the character of the appliance. As was said by the court in Butler v. Townsend (126 N. Y. 110): In one sense the place of an engineer’s work is on his locomotive, but a defect in that is a defect in the machine which the master has supplied, and not in the place of labor which he has furnished.” This applies to all the employees engaged in running a railway train. Their place is on the train, but if the train is thrown from the track by reason of a defect in the cars that defect and not the want of a safe place to work is the ground of the master’s liability.

There is no evidence in this case showing what was the cause of the fall of the platform, whether it was by reason of any structural defect or of any negligence in its adjustment or in the manner of its use, The theory of the action, and the only one on which it can be supported, is the personal negligence of the defendant, and there must appear facts and circumstances from which such negligence can be inferred. There must be some evidence from which it can be inferred that the injury sustained is attributable to some neglect of duty which the master owed to the servant. Tinder the principles of law stated it cannot be questioned, and I do not understand that it is, that there was insufficient evidence to support a finding of the personal negligence of the defendant, except by an application to the facts of this case of what is known as the rule of res ipsa loquitur.

That rule, as expounded by the Court of Appeals in its latest utterance on the subject, in Griffen v. Manice (166 N. Y. 188), relates simply to the probative force of evidence. It does not dispense with the necessity of evidence of the defendant’s negligence in any case, but on the contrary expressly requires it. In its application in those cases where the accident is such as, in the ordinary course of business, does not happen if reasonable care is used,” the effect of the rule is that evidence of the attendant circumstances is sufficient for an inference of negligence without proof of any specific negligent act. But the attendant circumstances shown must be such as will warrant an inference not of negligence only, hut of the defendant’s negligence; an inference that the injury is attributable to some violation of the defendant’s duty. The learned judge who wrote the opinion in Griffen v. Manice (supra), in explaining the meaning and application of res ipsa loquitur, quotes approvingly section 59 of Shearman and Redfield on Negligence as follows: “ It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred contain, without further proof, sufficient evidence of the defendant's duty and' of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or.that it is necessary to offer.” The judge in his opinion also quotes approvingly Benedick v. Potts (88 Md. 52), as follows : “ In no instance can the bare fact that an injury has happened of itself and divorced from all the surrounding circumstances, justify the inference that the injury was caused by negligence. It is true that direct proof of negligence- is not necessary. Like any other-fact, negligence may be established by the proof of circumstances from which its existence may be inferred. * * * This phrase (res ipsa loquitur), which literally translated means that ‘the thing speaks for itself,’ is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of-that accident.” The court says: “The ‘ res.' therefore, includes'the attending circumstances, and, so defined, the application of the rule presents principally the question of the sufficiency of circumstantial evidence to establish, or to justify the jury in inferring the existence of the traversable or principal fact in issue, the defendants negligence." -It-further says: “ But the question in every case is the same, whether the circumstances surrounding the occurrence are such as to justify the jury in inferring the fact in issue." “ The fact in issue ” is. not negligence, but the defendant’s negligence; a violation of some duty owing by him to which the injury is attributable. When the defendant alone is liable for any negligence which may have occurred, the rule is satisfied by evidence of any facts or circumstances from which- negligence may be inferred, but where the injury may have resulted from the negligence of a'fellow-servant, there must be some evidence that the injury is a consequence of .a violation of some duty of the master. There is-no presumption in such cases that the negligence is that of the- master rather than the servant, and the law will not visit on the master the consequences of the servant’s neglect of duty. In brief, the rule of res ipsa loquitur can have -no application in the absence of any evidence that it was the-defendant’s negligence which caused the injury sustained. As . is said" in Shearman and Redfield on Negligence, in the section quoted in Griffen v. Manice (supra), the surrounding circumstances must contain “ sufficient evidence of the defendants duty and of his neglect to perform it? The distinction which obtains in the application of res ipsa loquitur between those cases .where the defendant alone is responsible for any existing negligence and those where the injury may have been ' caused by the negligence of a fellow-servant, may be illustrated by the illustration used by the learned judge who wrote the opinion in Griffen v. Manice (supra). He says: “ I think a single illustration will show the correctness of the view of the learned authors, that it is not the injury, but the manner and circumstances of the injury, that justify the application of the maxim and the inference of negligence. If a passenger in a car is injured by striking the seat in front of him, that of itself authorizes no inference of negligence. If it bé shown, however, that ho was precipitated against the seat by reason of the train coming in.collision with another train or in consequence of the car being derailed, the presumption of negligence arises.” In that case whether the.negligence is a defect in the roadbed, or in the cars, or in the operation of the train, it is the negligence of the defendant alone and hence any negligence inferable from the- circumstances is the negligence of the defendant. But if for the passenger in the car there be substituted one of the employees in the operation of the train who has received, under the same circumstances, the same injury and brings an action to recover therefor, it could not be said that the proof is sufficient to show the defendant’s negligence. In the case of the passenger there is some evidence that the injury was. caused by a violation of the defendant’s duty; in the case of the employee there is no such evidence. In Breen v. N. Y. C. & H. R. R. R. Co. (109 N. Y. 297), cited by the court in Griffen v. Mcmice (supra) on the question of res ipsa loquitur, the plaintiff was a passenger and proof of attending circumstances showing negligence was proof of the negligence of defendant, as it alone was liable for any negligence, whether of an employee or otherwise, producing the injury. So, also, in the case of Peck v. N. Y. C. & H. R. R. R. Co. (165 N. Y. 347), cited in the Griffen v. Manice case, the action was to recover the value of a "warehouse of the plaintiff destroyed by fire caused by sparks emitted by the defendant’s engine, and the negligence inferable from, the circumstances was necessarily the negligence of the defendant.

A discussion of the many authorities cited by the learned counsel for the respondent in this case would be unprofitable. A rule that a servant can maintain an action for personal injuries against a master simply by showing attending circumstances from which the negligence of some one may be inferred, without showing, either expressly or inferentially, the personal negligence of the master, some violation of his duty to the servant, would be subversive of well-settled principles.

' If my conclusion is correct, the trial court erred in submitting the case to the jury and also in his charge, which was excepted to by the defendant, in the following language: If you find, and it is the first thing for you to consider in this case, whether that structure hanging there, as I have stated, 25 to 30 feet from the floor, in the manner that I have stated, is a structure that would have fallen in the manner that it did fall if reasonable care had been used, and if you-find that it would not . have fallen unless there was negligence, the want of reasonable care, you have a right to find in this case that Mr. Slade (the defendant) was negligent just the same as you would find if they had specified in detail what the negligence consisted of. I do not want any misunderstanding in regard to the rules I. am stating. It is first for you to find whether that would have fallen under the circumstances if reasonable care had been exercised, and'if you find that it would not have fallen if reasonable care had been exercised then you may assume and presume that the defendant, the person charged with the duty of reasonable care in this case, was negligent, and find a verdict in this case in favor of the plaintiff and against the defendant.”

The court not only instructed the jury that from the circumstances of' the accident they might presume negligence but might also charge the defendant with the consequences of any negligence .although it might be that of a fellow-servant of the plaintiff. That there may have been causes for the fall of the platform other than the negligence of the defendant is disclosed in the evidence. The raising and lowering, of the platform to accommodate it to the elevation of the ice in the rooms, or the raising or lowering.of certain sections of it, so as to produce a proper inclination for the sliding of the ice, and the loading of it with ice was detail work of the servant, and for any negligence in such work producing the injury, the defendant was not liable. What, if any, were the means employed for securing the screws underneath the drums, or the drums on which the cables were wound or unwound in raising or lowering the platform or certain sections of it, does not appear, nor does it particularly appear how that work was done by the plaintiff’s fellow-servant Foley and another employee on the afternoon of and before the fall of a part of the platform. This platform had been used successfully for at least two weeks for the same purpose for which it was then being used, and it appears that the section which was wound up by the fellow servants was one of those that fell after the operation. So, too, the falling may have occurred through the accumulation of too large a quantity of ice on the platform. It is true that there is no evidence that this detail work of the servants caused the fall of the platform. It is equally true that there is no evidence that any defect in the platform was the cause of its fall, and the difficulty is that it was left to the jury to speculate as to the cause of the accident, and whatever it may have been, whether imputable to the defendant or not, to charge him with its consequences. The accident may have resulted from causes other than defects in the platform, for which the defendant was not liable, and in the absence of any evidence of which the producing cause was, the defendant should have prevailed on his motion for a nonsuit. (Rose v. Boston & Albany R. R. Co., 58 N. Y. 217; Dobbins v. Brown, 119 id. 188; Ruppert v. Brooklyn Heights R. R. Co., 154 id. 90.)

The judgment and order should be reversed, with costs, and a new trial granted.

All concurred, except Chase, J., not sitting.

Judgment and order reversed on the law and the facts, and new trial granted, with costs to the appellant to abide event.  