
    (75 Hun, 578.)
    MULLIGAN v. CRIMMINS.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Master and Servant—Defective Appliances—Presumption from Accident.
    Where plaintiff is injured by a sliver flying from a punch when it is struck with a sledge, the fact that the punch was greatly battered by hammering does not raise a presumption of negligence, since it could not be said that a blow of a heavy sledge would not cause a sliver to fly from a punch in good order.
    Action by Michael Mulligan against John D. Crimmins to recover damages for injuries sustained by plaintiff while in defendant’s employ as a laborer on the Broadway cable road. Plaintiff, whose labors were directed by defendant’s assistant foreman, was directed to take up an old pickaxe, broken off at both ends, one of which was much battered by hammering, and hold it upon a spike. The foreman then struck the axe with a heavy hammer, to drive home the spike. A sliver broken off the battered end of the pickaxe by one of his blows flew into the plaintiff’s eye, and destroyed it. A nonsuit was ordered at circuit, and plaintiff’s exceptions were ordered to be heard at general term in the first instance. Judgment for defendant.
    Argued before DYKMAN and PRATT, JJ.
    Henry A. Monfort, for plaintiff.
    Chas. C. Nadal, for defendant.
   PRATT, J.

There are cases where the accident raises the presumption of negligence, but we do not think the present such a one. We are not able to say that a spicula would not be dislodged from a chisel by the blow of a heavy sledge when the chisel was in good order. There was no proof that the condition of the chisel, before the blow was struck, was a dangerous one; still less, that a reasonable examination would have disclosed danger. We are therefore of opinion that plaintiff failed to prove negligence on the part of defendant. Judgment for defendant.  