
    Michael Nolan, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Res ipso loquitur—the rule applies to eases between master and servant — proof simply that a block of wood fell on a person passing under an elevated railroad, does not bring the ease within that rule.
    
    The doctrine of res ipso loquitur is not confined to accidents where the party injured has no contractual relation to the party sought to he charged, but is applicable to cases between master and servant.
    In an action to recover damages for personal injuries sustained by the plaintiff while employed upon the defendant’s surface railroad, in consequence of his being struck by a block of wood about eighteen inches long, six inches wide and four inches thick, which fell from an elevated railroad situated above the surface railroad, leased and operated by the defendant, the doctrine of res ipso loquitur will not support a verdict in favor of the plaintiff where there is no evidence as to whether the block of wood ever formed part of the elevated structure or as to its location previous to the time it fell.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of May, 1901, upon the verdict of a jury for §750, and also from an order entered in said clerk’s office on the 20th day of May,. 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. JR. Oeland and George JD. Yeomans, for the appellant.
    
      Arthw' H. Wills and William -Van Wyeh, for the respondent.
   Willard Bartlett, T.

The plaintiff, at the time he received the injury which gave rise to' this action, was employed in the service of the defendant upon a sand car on the defendant’s surface railroad in the borough of Brooklyn. At that time the defendant leased and operated a steam, elevated railroad known as the Fulton Street Elevated Line, and the sand car upon which the plaintiff was riding was running underneath the elevated structure. A block of wood, about eighteen inches long, six inches wide and four inches thick, fell from the elevated structure and struck the plaintiff upon the head, inflicting-injuries for which the jury awarded him damages in the sum of $750.

In the charge, the learned trial judge instructed the jury that the-plaintiff was entitled to recover only upon proof that the block of wood by which he was ..injured had been in some way connected with the elevated structure, and that it fell by reason of negligence-of the company in not keeping the structure in order.

The only fault found with this instruction by counsel for the.appellant is, that there was no evidence in the case to warrant the jury in finding that the piece of wood which fell, and injured the-plaintiff had ever been a portion of the structure of the defendant’s; elevated railroad, and I think that his assertion in this respect, is-sustained by the record.

The doctrine of res ipso loquitur is invoked in support of the-judgment, and would be applicable if there were proof tending to-show that the block was a part of the elevated railroad and had become detached therefrom and fallen upon the plaintiff. That-doctrine is not confined to accidents where the party injured has no-contractual relation with the party sought to be charged; oh the contrary, it has been applied in this and other States in negligence suits between servant and master. (Green v. Banta, 16 J. & S. 156; affd., 97 N. Y. 627.) The case cited, and many others on the-same subject, are reviewed by Judge Cullen in Griffen v. Manice (166 N. Y. 188), which contains the fullest and most satisfactory -discussion of the rule of res ipso loquitur to be found in the law reports of this State; and it is there distinctly held that the application of the rule does not depend upon the relation of the parties. “ Of course,” says Judge Cullen, “the relation of the parties may determine the fact to be proved, whether it be the want of the highest care or only want of ordinary care, and, doubtless, circumstantial evidence, like direct evidence, may be insufficient as a matter of law to establish the want of ordinary care, though sufficient to prove absence of the highest degree of diligence. 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 reason why the doctrine of res ipso loquitur is insufficient to' uphold the verdict in the present case is that the mere fall of the block of wood from off the elevated structure overhead does not •alone and of itself indicate whether it was. brought about by any want of care for which the defendant, as master, can be held liable to the plaintiff as servant. In the absence of any information as to the previous location of the block—whether as a component part of the elevated structure itself, or lying loose upon it, or in the hands of a fellow-servant of the plaintiff at work on the tracks above him — we are unable to determine or even to guess whether there was any negligence for which the law imposes any liability upon the defendant. Indeed, the proof shows that a train was passing over the elevated line at the time when the stick- of wood fell, and upon all the evidence, there is just as much reason to suppose that it fell from the train as there is to suppose that it had become detached from the railroad itself.

In my opinion, the judgment was insufficient to take the case to the jury, and the judgment should be reversed.

All concurred.

Judgment and order reversed, and new trial granted, with costs to abide the event.  