
    Paul Pieschel, Plaintiff, v. Henry C. Miner, Defendant.
    (Supreme Court, New York Trial Term,
    January, 1900.)
    1. Negligence — Accident from the fall, in a theatre, of a fire hook not visibly defective.
    Where a person sues a theatre proprietor for personal injuries sustained by the fall, from above the stage, of an iron fire hook while the stage carpenter was using it, a failure to show that the hook was unsuitable, or visibly defective, or that its use, in good condition, was a> careless act, renders a dismissal of the complaint proper.
    2. Same — Presumption of negligence arising from an unexplained accident.
    The rule, that an unexplained accident creates a presumption of negligence, ceases to have force as soon as conditions are shown under which the accident might have resulted from a variety of causes, for some of which the defendant was not responsible.
    Motion by plaintiff to set aside a dismissal of the complaint.
    Lawrence & Hughes, for plaintiff.
    Evarts, Choate & Beaman, for defendant.
   Dugro, J.

Plaintiff moves to set aside a dismissal. He showed that, while in.the orchestra of defendant’s theatre, he was injured through the fall of an iron hook from above the stage. The defendant, through a witness called by the plaintiff, showed that the hook fell while in use by the stage carpenter; there was no evidence of the character of any defect which existed prior" to the accident, or that the tool was unsuited to the work. It does not appear that the use of such a fire hook in good condition was careless; and so, as a defect probably existed, negligence depends upon' whether the defect was discoverable upon inspection or not. The case is bare of evidence upon this point. The dismissal was, therefore, right. Gavin v. Rogers & Co., 17 Rettie, 206; Beven Neg. 141; Thomas Neg, 574. The point that, if a presumption of negligence arises from the circumstances of a case as presented by a plaintiff, the defendant must show care, is not well taken. To meet the presumption it is sufficient to show circumstances inconsistent with its existence, though they be insufficient to prove care. As illustrative, a plaintiff’s prima facie case made by a presumption of death, due to an absence of seven years, may be met by evidence of presence within-the seven years, though there be no showing of life.' The presumption of negligence, if it exists, arises, among other things, from an absence of explanation by defendant; but so soon as an explanation is made and shows a situation wherein the accident may have happened from a variety of causes, any of which is equally probable, and some of which may be due to defendant’s default, while others are due to influences for which he is not responsible, the accident is not to be presumed' to fix the defendant with liability. Beven Neg. 141; Cosulich v. S. O. Co., 122 N. Y. 118; Dobbins v. Brown, 119 id. 188.

Motion denied.  