
    MARY WITTE, by Guardian, Appellant, v. LOUIS DIEFFENBACH, et al., Respondents.
    
      Negligence—Presumption as to—Res ipsa loquitur, when not applied.
    
    Before Sedgwick, Ch. J., Teuax and O’Goeman, JJ.
    
      Decided December 17, 1886.
    Appeal from a judgment entered on a verdict of a jury, which the court had directed for the defendants.
    The facts in the case were as follows:
    On August 25, 1884, defendants were putting up a fire escape on the front of the premises 322 Henry street, in the city of New York. A hammer, in the hands of one of defendants’ employees engaged on said work, broke, and the hammer head, weighing from a pound and a half to two pounds, fell four stories and struck plaintiff on the top of her head as she was passing along the sidewalk in front of said premises, and she sustained serious injuries from the accident. Defendants gave testimony to show that they bought the hammer from a dealer who sells only articles of the best quality, that this hammer had been in use about two weeks at the time of the accident, that the workman in whose hands the handle broke was using it in an ordinary way, striking a chisel with it, at the time, and that neither he nor the defendants were aware of any defects in the handle. The workman had not examined the handle for the purpose of ascertaining if it had any defects. There were no guards across the sidewalk to prevent people from passing underneath the workmen, and no sign of warning, and there was nothing placed underneath the workmen to prevent anything they might drop from falling upon people passing underneath, except the planks they stood on. At the conclusion of all the testimony, the defendants moved for the direction of a verdict in their favor, on the ground that the evidence showed defendants free from any carelessness or negligence. The plaintiff requested that the question of negligence be submitted to the jury. The court directed a verdict dismissing the complaint. Judgment for costs having been entered against plaintiff, she brings this appeal therefrom.
    The Court of General Term, said :—“ We are of the opinion that the evidence does not show that the defendants were negligent.”
    
      Marshall P. Stafford, for appellant.
    
      Añdrew Comstock, for respondents.
   Opinion Per Curiam ; Sedgwick, Ch. J., Truax and O’Gorman, JJ., sitting.

Judgment affirmed, with costs.  